the testatrix was induced to add the clause limiting the girl’s power to marry. The will was signed on April ninth.
“On April eleventh, Dorothy, then nineteen years of age, brought her fiancé, Doctor Alan Kellogg, to her mother’s bedside, informed her of their engagement and received her blessing. All this was known to the respondent. Nevertheless, the testatrix having died a few days later and the will having been probated, this man, Gamage, for the obvious purpose of acquiring the property for himself, refused to give his consent to the marriage.”
“I object!” roared Mason, coming suddenly to himself. “This is utterly improper! These alleged facts are entirely outside the record!”
“But are they true, counselor? I merely ask out of curiosity,” inquired the youngest old bozo.
Mason flushed.
“There is not a word of evidence in the record that any of them are true!” He glared at Mr. Tutt. “My opponent’s reference to them is outrageous.”
“Squire Mason is quite right,” answered Mr. Tutt patiently. “No, the facts to which I, unfortunately, referred are not in the record. I hope the Court will overlook my transgression.”
“This court has got to decide this appeal solely upon the record and nothing else!” declared Mason with severity.
“Don’t excite yourself, counselor,” remarked the youngest bozo. “You may rest assured that the Court will do as you so properly insist.”
“Go on, Mr. Tutt!” directed the P. J. “On the facts stipulated, how can you claim that your client has not forfeited the estate?”
Mr. Tutt paused dramatically.
“For the simple reason that under the law she has not done so. The plaintiff-respondent, Gamage, in the lower court failed to make out any case whatsoever. The governing rule, as set forth in my supplemental brief, is to be found in Jarmon on Wills, Volume II, at Page 853. It is to the effect that where a person would take an estate by inheritance, had there been no will, but does take it under a will containing a condition by which he may forfeit the property, he cannot be held to have incurred the forfeiture unless it be first shown that he was aware of the condition and broke it with full knowledge of what the consequences would be. The principle has been followed in Shackleford versus Hall, 19 Illinois 212; Merriam versus Wolcott, 61 Howard’s Practice 377, and several other cases in this country as well as in England. I have found none to the contrary.”
“I am not familiar with the doctrine you mention,” commented the P. J. “It must have been rarely applied, but it is eminently just. So you claim that your client knew nothing about this condition in her mother’s will?”
Mr. Tutt’s face assumed a mask as inscrutable as that of Judge Gamage. He, too, could hold four aces.
“My claim, Your Honor, is that there is nothing in the record—that record so zealously guarded by Brother Mason—to so indicate.”
Squire Mason leaped to his feet.
“Those aren’t the facts at all! Dorothy Tarleton knew all about her mother’s will. Judge Gamage warned her over and over again that if she married Doctor Kellogg she’d forfeit her share in the estate. The will was probated and public property. Everybody in town had read it. She did the whole thing deliberately. She never pretended she didn’t. Mr. Lecky always conceded she had.”
“If Brother Mason,” said Mr. Tutt quietly, “will show me a single word in the record to prove that Dorothy Tarleton had any notice whatever of the condition, I will consent to an affirmance of the judgment in his favor.”
Each of the old bozos had reached for the printed record before him and was studying its pages.
“What Mr. Tutt claims is all nonsense!” declared Mason excitedly. “Read the note she left! ‘This is to tell you that, although you are my guardian, I am going to marry Alan Kellogg without your consent, and in spite of what the consequences may be.’ That proves she knew there would be unfavorable consequences!”
“There are always consequences to every step in life, counselor,” returned the youngest bozo. “The sentence you have just read does not prove that the defendant knew she would forfeit anything under her mother’s will. Non constat that she wasn’t referring to any one of the many well-known dangers following upon matrimony.”
“But how about the next sentence?” demanded Mason. “‘Of course, I know that in refusing to approve my marriage, you are actuated only by the basest motives.’”
“Do you concede your client’s motives to have been base?” inquired his tormentor.
“No, of course not! Merely that she claimed they were, because he’d get her property.”
“Well, then, what were they?” persisted His Honor.
“Why—why, perhaps he didn’t approve of her marryin’ so young!” stammered the Squire. “Or, mebbe, he thought the doctor couldn’t support her properly.”
“Perhaps! Maybe!” mused the justice, with a meaning look at the unhappy lawyer.
Mr. Tutt cleared his throat.
“In Shackleford versus Hall, Chief Justice Caton, while holding the marriage limitation legally proper in its terms, declared it to be ineffective, since there was no proof that the plaintiff had knowledge of it. To quote his exact words: ‘One who has an estate or title real independent of the deed or instrument containing a condition of forfeiture, shall not be presumed to have notice of the condition, and he shall not be held to have incurred the forfeiture unless he committed the breach with knowledge of the condition and the consequences.’ This court cannot, without proof, presume that my client had knowledge of the condition in her mother’s will.”
The P. J. nodded thoughtfully.
“There is certainly no proof of it in the record. If it ever were conceded—as to which I, naturally, can have no knowledge—whoever assented to this stipulation omitted that essential fact either inadvertently or through ignorance of the law. Shackleford versus Hall, and Merriam versus Wolcott seem directly in point. The doctrine, while unfamiliar—perhaps, even unique—is sound. In the absence of affirmative evidence to the contrary, we must presume that Mrs. Kellogg had no knowledge of the condition or the intent of her stepfather to claim a forfeiture if she broke it.... Have you anything further to say, Mr. Mason?”
It was clear that the Squire had nothing to say, for he was teetering back and forth on the balls of his feet, his jaws agape, apparently on the verge of apoplexy.
The five old bozos put their heads together, conferred, nodded; then each took up his pen, dipped it and scribbled something across the cover of “Gamage versus Kellogg.”
“The judgment of the court below is unanimously reversed,” announced the P. J. “There is no need of an opinion. Judgment is hereby directed to be entered for the defendant. Call the next case.”
Mr. Tutt turned from Dorothy Kellogg’s joyous smile to the other side of the courtroom, where Judge Gamage had melted into a grotesque and deflated huddle.
“Your Honors,” he said, addressing all five old bozos, but the youngest one in particular, “may I make an announcement that is strictly off the record?”
“You
