to votaries of the law. And just as the maples were turning red and the air had a nip of autumn, Mr. Tutt was unexpectedly substituted as counsel for the defense for old Mr. Lecky, to the latter’s great relief.
The New York Appellate Division for the Fourth Department, in which Pottsville is located, sits in Rochester, and “Gamage versus Kellogg” was among the appeals set for argument at the October term. Dorothy, who had secured a job as governess to two children belonging to the Hillsdale summer colony, had lost it with their departure for the city and had found nothing to take its place. Alan, though rapidly improving, was still in Arizona. She had been living on credit for more than a month, and the future looked more than dark. Nevertheless, she resolved that nothing should keep her from going to Rochester to hear Mr. Tutt argue her appeal, even if she had no chance to win and had to walk to get there. When the morning came, she was surprised to find how many of her fellow townsmen had experienced the same impulse. Indeed, it seemed as if, in addition to Ma Best, most of the Sacred Camels of King Menelik had boarded the train with her.
“You just keep your courage up, dearie,” encouraged Ma as she squeezed in beside her. “If anybody can win your case for you, it’ll be Mr. Tutt. He knows more than all the judges put together.”
“I made up a limerick last night!” announced Toggery Bill Gookin proudly from across the aisle. “Listen, folks:
“There was an old fellow named Tutt,
Who at law surely knew what was what.
He’d twist any case
Into right-about-face,
And make the judge look like a nut!”
“Never knew you was a pote, Toggery!” exclaimed Sheriff Higgins, with genuine admiration. “But that’s good, I’ll say!”
“Why not make one about Gamage?” suggested Ma. “Let’s try! ‘There was an old buzzard named Gamage——’”
“‘Who always was up to some damage,’” supplemented Toggery. “Can’t finish it, though. Ain’t no other rhyme for ‘Gamage’ except ‘damage.’ I’ve been through the hull durn alphybet.”
“Never mind!” commented Mose. “Ma got the pint into the fust line.”
Dorothy glanced about the great courtroom timidly. It was already three-quarters full, but, since she wanted to hear everything Mr. Tutt had to say, she nerved herself to take one of the unoccupied front seats. On the other side of the room, Squire Mason was ostentatiously joking with her imperturbable stepfather. Inside the rail, the dignified clerk was arranging five little piles of pamphlets upon the dais before five empty chairs. If only the law were not so impersonal! Then she felt a hand on her shoulder and looked up to see Mr. Tutt’s tall, ramshackly figure beside her.
“Can’t you sit here with me?” she urged.
“I’d like to, my dear,” he smiled down at her. “But I’ve got to get nearer the bench. Some of those old bozos are a little deaf.”
“Have we any chance?”
He raised his eyebrows quizzically.
“Who knows? The law is always a gamble. No one can ever tell what judges will do.”
Just then the clerk intoned: “Order in the Court! Their Honors, the Justices of the Appellate Division.” Mr. Tutt hurried forward to the enclosure, and the five “old bozos” filed in and took their seats.
“Really,” thought Dorothy, in spite of herself, “they seem like a very nice lot of old gentlemen.”
The presiding judge, a white-haired, rosy-cheeked, golfing-looking judge, arranged his robe, settled himself and took up the calendar.
“Kellogg versus Gamage?” he called inquiringly.
“Ready!” answered Mr. Tutt and Squire Mason in unison.
The rest of the cases were marked either “ready” or “adjourned,” and the presiding judge—familiarly known as the “P. J.”—leaned back and directed Mr. Tutt to proceed.
“If Your Honor please,” stated the old man, “this is an appeal from a judgment of the Supreme Court of Somersett County in favor of the plaintiff, Thomas Gamage, in an action brought for a declaratory judgment of forfeiture. Before I commence my argument, I respectfully ask permission to submit a supplementary brief. The fact is, I didn’t have the good fortune to find the authority upon which I chiefly rely until late yesterday.”
The P. J. reached for the bundle of slim brochures tendered him by Mr. Tutt and distributed them among his fellow bozos.
“I think we can extend you this courtesy,” he replied good-naturedly. “Of course, you’ll hand your opponent a copy and, if necessary, give him time to file an answer.”
“Of course,” bowed Mr. Tutt, proffering a similar leaflet to Squire Mason. “The case is here on stipulated facts. The testatrix, from whom title to the property in question derives, devised it to her only daughter, the appellant, on condition that the latter should not marry before she attained twenty-five years without the consent of her stepfather, the respondent, under penalty of forfeiting it to him.”
The youngest old bozo, who had comparatively little white in his hair and sat at the extreme left, glanced up suddenly, as if in recollection. Then his eyes slowly traveled the courtroom and came to rest on Dorothy.
“The appellant did marry without her stepfather’s consent and before that age,” continued Mr. Tutt. “The question before this Court is as to the effect of the clause limiting her freedom to do so.”
“Are those all the stipulated facts?” inquired the chief bozo.
“Yes. It’s a pure question of law.”
“This Court has repeatedly upheld the validity of conditions in trusts or wills restraining marriage on the part of the beneficiaries before a certain age without the consent of a third party,” interrupted the P. J.
Mr. Tutt bowed.
“We do not rely upon the claim that the limitation is invalid,” he remarked, almost casually.
Dorothy stiffened. But that was the only point in the case! What, in heaven’s name, did he rely on, then?
The old lawyer cleared his throat.
“We rely solely upon the facts”—he glanced sideways at Mason, whose nose was securely buried in Mr. Tutt’s supplemental brief—“which are, to say the least, unusual. Some ten years ago, the respondent-plaintiff, Gamage, appeared in the town of Pottsville, took up his residence at the local hotel, and made himself popular with the inhabitants—especially the more well-to-do, among them Samuel Tarleton, the original owner of the property in litigation and father of the appellant. When Tarleton died, Gamage married his widow, a sickly woman, over whom he had acquired a strong influence. During her last illness, she executed a will leaving her entire personal estate to her new husband, but devising the homestead, which had been in her husband’s family for more than a century, to her only daughter—now Mrs. Kellogg—whom I have the honor to represent on this appeal.”
He waved toward Dorothy, and the five old bozos looked at her with interest and obvious approval.
