Arnold v. Chesebrough

• Decision Date: 17 October 1893
• Docket Number: 77.
• Citation: 58 F. 833
• Parties: ARNOLD et al. v. CHESEBROUGH et al.
• Court: U.S. Court of Appeals — Second Circuit

58 F. 833

ARNOLD et al. v. CHESEBROUGH et al.

No. 77.

United States Court of Appeals, Second Circuit.

October 17, 1893

J. H V. Arnold, for appellants.

Walter S. Logan, for respondents.

Before WALLACE and SHIPMAN, Circuit Judges, and WHEELER, District Judge.

WALLACE Circuit Judge.

The dismissal of the bill of complaint by the decree of the circuit court proceeded upon the ground that Leonora A Arnold, the principal complainant, was not the issue of a marriage between her mother and Blasius M. Chesebrough. The question which this appeal requires us to decide is whether Mrs. Arnold's father and mother were husband and wife. The decision depends upon the effect of direct evidence relative to a ceremonial marriage between the parents, and of indirect or presumptive evidence indicating the matrimonial relation, arising from their cohabitation and repute conduct, and declarations. In such actions the burden of proof is upon the party who asserts the marriage; but the law presumes, from considerations of decency and public well-being, that every competent couple, who ostensibly cohabit as husband and wife, demeaning themselves to wards each other as such, and were received into society, and treated by friends and relatives as being entitled to that status, have been legally married. This presumption is indulged with special cogency when the legitimacy of the offspring is the issue for judgment. A perfect marriage may be constituted by the consent of the parties to live together as husband and wife, as well as by a ceremonial marriage, and either form of marriage may be proved by any circumstances justifying the deduction as well as by direct evidence. But, in the absence of direct proof, marriage cannot be proved by cohabitation alone, however long maintained. The evidence must support a matrimonial cohabitation, as distinguished from a meretricious one. Com. v. Stump, 53 Pa. St. 132; Rose v. Clark, 8 Paige, 574; Cunningham v. Cunningham, 2 Dow, 482. The facts that parties have publicly acknowledged each other as husband and wife; have assumed the marriage rights, duties, and obligations; have been generally reputed in the place of their residence to be husband and wife,--are relevant to prove a contract of marriage between them. Both cohabitation and reputation are necessary to establish a presumption of marriage, where there is no proof of actual marriage. A divided repute, however, is of no efficacy. It must be a general and consistent one, to be of value. We have to apply these rules of evidence to a voluminous mass of testimony, much of which is untrustworthy, eliminating from consideration much in the record which is incompetent. We cannot undertake to recapitulate the testimony, or analyze it in detail, as it would serve no useful purpose to do so.

The facts, in outline, are these: Leonora A. Arnold was born at New York city in October, 1857. Her father was Blasius M. Chesebrough, and her mother was Josephine Cregier. The father and mother met at a dancing school in New York city, where they both resided, in 1854, and on the evening of their first meeting she accompanied him to his rooms, and remained with him during the night. She was then about 16 years of age, and was living with her mother, who kept a boarding house. He was about 35 years of age, and was an ostentatious, dissolute, lewd, eccentric man; addicted to drink, capricious, and extravagant. He had studied law, but, becoming enamored of the stage, had devoted himself to theatrical enterprises. He associated generally with low companions. He had inherited some property, but derived the larger part of his income from the allowances made to him by his widowed mother, a woman of wealth, whose children seldom visited her, except to obtain money, and who led an isolated life. He had one brother, but seldom met him. Shortly after the episode mentioned, Josephine left her mother's house, and went to live with him. They lived together at various hotels and boarding houses in New York city from 1854 to 1858. Whether they lived together continuously does not satisfactorily appear, but they certainly lived together the greater part of the time. She went by the name of 'Mrs. Chesebrough,' and they held themselves out as husband and wife whenever it seemed expedient or desirable to do so; but she passed as his mistress among those of his associates to whose opinion of his respectability he was indifferent. They made occasional journeys, sometimes with his own equipage, to distant parts of the country. In September, 1855, while they were at the United States Hotel at Saratoga Springs, a child was born to them, died at its birth, and was buried at that place. It would seem that they selected this place, after the close of the conventional season, to have the accouchement take place there. When the birth of a second child, Leonora, was expected, they went to live with Mrs. Cregier, Josephine's mother.

Leonora was born at Mrs. Cregier's house. He was frequently intractable, and when in drink was quarrelsome and violent. Apparently, she wearied of his caprices and abuse. In 1858 she left him clandestinely, going first to South Carolina, and subsequently to Tennessee, and lived while in these states with one Jackson, as his wife. Leonora was left in the mean time at the house of Mrs. Cregier. Her father did not support her, and she was provided for by Mrs. Cregier until the latter's death, which took place in 1870. In 1858 Mrs. Cregier sued him for six months' board of himself and family, and obtained a judgment for $175. In 1859 Mrs. Cregier brought suit against him for the seduction of Josephine, claiming, in substance, that the relations had been illicit while he and Josephine lived together, and that Leonora was the fruit of their unlawful cohabitation. Mrs. Cregier and one of Josephine's sisters were witnesses at the trial of that suit. Blasius did not interpose any defense, and a judgment was obtained against him for $2,500, and subsequently collected. Mrs. Chesebrough, the mother of Blasius, died in 1860, and he then succeeded to a large property. He died in 1866, having lived as a bachelor since Josephine left him, ignorant of her whereabouts. He left no will. Leonora and Mrs. Cregier attended his funeral. In 1868 Josephine returned for a time to New York. While there, she, with her mother, consulted counsel, with a view of enforcing any rights which could be claimed by them or Leonora against the estate of Blasius. Soon after her grandmother's death, Leonora made a visit of a few months to her mother, in Tennessee, and then returned to New York. Thereafter she lived part of the time with her relatives, and part of the time supported herself by her own exertions. Between the visit to her mother in 1870, and 1880, she never heard from her mother. In 1879 Leonora married Mr. Arnold, and in the fall of that year, induced by the representations of designing persons, who had been conversant with the affairs of Blasius, he began to collect evidence to set on foot the attack which culminated in the present suit. In 1880 Leonora went to Tennessee to find her mother, and secure her assistance, and found her. Shortly afterwards, Josephine came to New York. Until this time, neither of them had taken any legal proceedings founded upon any alleged rights as the wife or daughter of Blasius.

The only evidence of a ceremonial marriage which appears in the record consists in the testimony of Josephine, the alleged wife. She testified as a witness for the complainants that after she and Blasius had lived together some time, they went to Baltimore, Md., and were married there by a clergyman, at his house. She could not give his name or residence, and stated that no witnesses were present. She made no mention of a marriage certificate or a wedding ring. The testimony did not offer any details tending to fix the place where the alleged marriage took place, or the person performing it, or the attendant circumstances. It suffices to say of it that it was improbable and incredible. She did testify, however, that while in Baltimore they stopped at Barnum's Hotel. It is in proof that no persons of their name were guests of that hotel. There was no publication of marriage, and no license to marry; and in the absence of a license it would have been a criminal offense, on the part of a clergyman, to perform the ceremony. At a later stage in the taking of the proofs, she testified as a witness for the defendants, and made a complete retraction of her previous testimony relative to the ceremonial marriage. She then testified that there never was a ceremonial marriage, and that, during the time they lived together, she never believed or considered herself the wife of Blasius. When asked, however, if anything had been said between them relative to a marriage, she stated that he had promised her that he would marry her when his mother should die; but she gave no details as to the time, occasion, or circumstances of such a conversation. Of course, no credit ought to be given to the testimony of a witness who has committed bald perjury. We cannot say whether she testified truthfully in her original or in her subsequent testimony. Certainly, if any of her statements can be accepted as credible, it is only those which it would be against her probable interest or inclination to make. We may believe that on the first occasion when she met Blasius she surrendered her person to him, and that she lived with him for some period of time before the alleged ceremony of marriage, and that she left him clandestinely, and lived in the south as the wife of another man until after his death. She testified to these facts originally when she was trying to appear as a semi-respectable woman, and as to them did not recant...