Arnold v. Chesebrough

• Decision Date: 30 June 1891
• Citation: 46 F. 700
• Parties: ARNOLD et al. v. CHESEBROUGH et al. [1]
• Court: U.S. District Court — Eastern District of New York

46 F. 700

ARNOLD et al. v. CHESEBROUGH et al. ^[1]

United States Circuit Court, E.D. New York.

June 30, 1891

Henry Rawcliffe, (John H. V. Arnold, of counsel,) for complainant.

Bliss &amp Schley, (W. S. Logan, of counsel,) for defendant.

LACOMBE Circuit Judge.

This is an action brought by Leonora A. Arnold, who claims to be a legitimate daughter of Blasius More Chesebrough, against the executors and trustees under the will of his mother, Margaret Chesebrough, deceased, such will directing that, upon the death of Blasius, (an event which happened in 1866,) one equal half part of her residuary estate should be paid to his lawful issue, if any. It is not disputed, upon the proofs that the complainant's mother is Josephine, a daughter of Mrs. Rachel Cregier, nor that her father was Blasius M Chesebrough. It appears that she was born (October 9, 1857) in the house of her grandmother, (Mrs. Cregier,) in this city, and that for several years prior thereto her father and mother lived together, as man and wife, in hotels, in boarding-houses, in apartments, and also at her grandmother's.

It is essential to the complainant's case, however, that the fact of a marriage between her father and mother should be shown by competent evidence, to the satisfaction of the court. The question to be determined is a question of fact, to be settled upon a consideration of all the competent and relevant evidence in the case. It is a fact which, at the close of the case, the complainant must show to be established by a fair preponderance of proof. As the evidence is being put in, the weight in either scale may vary, and such preponderance may shift from side to side, but the burden of proof which the complainant assumed when she filed her bill she must show herself able to sustain when the case is closed, or she has failed. There is no presumption of law in such a case. Blackburn v. Crawfords, 3 Wall. 186. Such presumptions of fact, or rather such unproved inferences from proved circumstances, as human experience will warrant the trier of the facts in drawing, may constantly vary, may be of greater or of less force, controlling of the final decision, or of no effect thereon, just as there may be change in the number and character of those proved facts from which it is sought to draw the inferences; and the final conclusion must be drawn with a due regard to the entire body of competent and material proof. Marriage may be proved by circumstantial evidence, by proof of the acts and declarations of the parties, of their cohabitation as husband and wife, holding themselves out to the world as sustaining that honorable relation to each other. But neither such a course of life nor such declarations make a marriage, nor do they even directly or affirmatively establish it. They may, if satisfactorily proved and sufficiently strong, be legitimate ground for inferring that there has been a valid marriage,-- a contract, that is, (with or without any ceremony,) whereby, at some time and place, the parties agree together, per verba de praesenti, to be husband and wife, following that agreement by cohabitation as such. Whoever asserts a marriage as the basis of a claim at law or equity must satisfy the court, upon the whole case, by a fair preponderance of proof, not necessarily where and when such contract was made, but that at some time and place it was made. If it is sought to prove that fact by circumstantial evidence, the triers of the fact must first determine what circumstances are fairly proved, and then decide whether all those circumstances, taken together, constrain the mind to accept the inference that such contract was made.

Blasius M. Chesebrough, who claimed to have purchased a title of nobility in Austria, and liked to be known as 'Count,' is described, truthfully enough, by counsel as a very eccentric man, bombastic, pompous, and extravagant; but this by no means completes his picture. He was under no restraint, self-imposed or otherwise; absolutely selfish; seeking pleasure in the constant gratification of his sensual appetites; reckless, roystering, dissipated; rarely completely sober; a frequenter of bawdy-houses; a bad son; a mere brute when inflamed with drink; and yet contemplating himself and his position in the community with a self-complacent conceit, which esteemed 'Count' Chesebrough as something superior to mere common clay. In 1854, when he first encountered Josephine Cregier, (though some testimony would make the date 1853,) he was about 35 years of age and she was 16. They met at Sirocco's dancing-rooms in Bond street, (Blasius having apartments in the same building,) and that some night she shared his bed. Shortly thereafter she left her mother's home, and lived with him in Bond street and elsewhere, and the testimony is uncontradicted that for weeks certainly, probably for months, they maintained a meretricious connection. It is contended by the complainant that subsequently, in 1854, they were married in the city of Baltimore, whither they made a trip for that express purpose; and Josephine herself, testifying for the complainant, gave direct evidence to that effect. Subsequently, when called by the defendants, she retracted her former statement, and testified that she was never married to Blasius M. Chesebrough in Baltimore or elsewhere. If her later testimony were to be accepted, there need be no further inquiry. Certainly, in view of her admitted perjury, the complainant...