. FEDERAL REPORTER,
cteafillgthbi ,ttust.Tbe· couTtsaid that the true test was "whether the
services and':expenses' for which he demands compensation' and reimbursement were either directed by the terms of the deedi·of trust, or were neaessary to ia performalWe of the dutie.s imposed upon him by that instrument." The! ;opinion of the court will be found to be instructive. The ruiing was affirmed in 84 Mo. 210, the supreme court there adopting the 'reasoning and approvingrthe conclusion reached by the court below. . The ap.plication. will be denied.
et al. v.
et at. l
(Circuit CoUrt, E. D. NeW York. June 30; 1891.)
One who asserts a marriage as the basis of a claim at law ·01' in equity must satisfy the court. upon the whole case, by a fair preponderance of proof, not necessarily when and whel'e such contract was made, but that at some time and place it was made.
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 sucb.f:luch course of life or declal'ations do not make a marriage, but are legitimate ground for inferring that there has been at some time a valid martiage contract. S. SAME-EvIDENCE-REi'UTE. On a disputed question as to the existence of a marriage, evidence of repute in the falI1ilies of the contracting parties is admission. 4. SAME. On the evidence in .this case, he£d that the marriage asserted by complainant was not proved.
Henry Rawcliffe, (John H. 17: Arnold, of counsel,) for complainant. Bliss & Schley, (W. S. Logan, of counsel,) for defendant.
LACOMBE, Circuit Judge. This is an action brought by Leonora A. Amold, 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 resid uaryestate 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. Cregiet,) in this city, and that for several years prior thereto her, lither and mother lived together, as man and wile, in hotels, in'boarding-houses, in apartments, and also at her grand-
EdwardG. Benedict, Esq., of the New York bar
,ARNOLD V. CHESEBROUGH.
mother'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 rele\'ant evidence in the case. It is a fact which, at the close of the case, the complainant must show to be establii'\hed 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. Cra'U'Jords, 3 Wall. 186. Such presumptions of tact, 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 ehange 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 sustaming 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, it 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 prxsent'i, 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 wnere 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; speking pleasure in the constant gratification of his sensual appetites; reckless, roystering, dissipated; rarely completely sober; a frequenter of bawdyhouses; a bad son; a mere brute when inflamed with drink; and yet contemplating himself and his position in the community with a selfcomplacent conceit, which esteemed "Count" Chesebro ugh 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
Tht:y met at Sirocco's dancingapartments in the same building,) .and same ,night she his bed. Shortly thereafter she left her mother's home, and lived with in Bond street and elsewhere, and the testimony is that. for weeks certahlly, probably for Jl}cmths, they maintained a meretricious connection. It is contended by' the QQmplainant that su/;>seqllentl,y, in 1854, they were married in the city of Baltimore, whither they,made a trip for that express purpose; :andJosep.hine herself, testi(ying for the complainant, gave direct. evito that effect. Subsequen1)y, when called by the defendants, she retr.actE!d her: former statement, apd testified that she was never married 4;0, l?lasius ,1\1. Chesebrough in BaItimoreorelsewhere. If her later testimony wer.e to be accepted, there need be no inquiry. Certainly, inyitlw,o( ber admitted pex:jury, the complainant canllOt insist that her testimQnYaffords direct .proof of 11 marriage.. If her evidence both ways On that point be disregarded, such pr<>of can only be found, if at aU; as a,necesl3ary and natural inference from all such circumstances as are eBo· . by the testimony of credible witnesses. , .To discuss at length this testimony ,extrt;:mely voluminous, and a large part of it taken under exception, is wholly unnecessary. The point to be decided is purely a question of fact. The conclusion reached, alter consideration of a multitude of circumstances, peculiar to the case, would be of no value as a. precedent in other cases, where the circum.stances were not identical. It will be .enough, tht;:refore, t.o indicate, with great brevity, SoPW ()i the reasons which lead to the conclusion that Blatiius M. Chesebrough ancl Josephine Cregier were not husband and wiie. The intercourse was originally meretricious, and there was no reason why Blasius shauB change it. Marriage was not needed as the .price to be paid for the gratification of some passion. The girl had already yielded, apparently without much objection, to his solidtation, and WaS. Ii ving with him as his mistress. That marriage was.a reparation, which he ought to make her for having gratified his passion at the sacrifice of her virtue, was an idea which there is certainly no reaSOll to suppose would ever have entered the head of Blasius Chesebrough, nor been entertained there long had. it been suggested by another. Until the time when they separated, in 1858, they lived together as husband and wife, to the extent at least of sharing the S.1me rooms, and indicating to dressmakers, servants, and others, with whom they necessarily had occasion to come in contact, that their relationship was a proper one. Standing alone, such testimony would be very strong evidence in support of an asserted marriage; but it is also the way in which man and mistress freqnently live, in which it may be said they must live. if they frequent respectable hotels; and, when it appears that their Ii ving thus together began illicitly, something more than mere continuance, coupled with such declarations as would make that continuance pleasant for them, is needed to support an inference that they were married. There seems to. be nothing to distinguish the cohabitation which immediately succeeded the first meeting at Sirocco's from the co-
ye(lrsofage and she Wits 16.
ARNOJ,D '1:. CHESEBROUGH.
habitation which followed the month of October, 1854, when it is claimed they were married in Baltimore. There is nothing to exclude the l1atural inference that· the former relation continued, nor to satisfactorily prove that it had been changed into that of an actual marriage by mutual consent. The declarations of Blasius, made subsequently to their separation, may be disregarded. As to the statements that they were married, made, during such intercourse, to hotel-keepers, and to other persoris, at a time when a respect for appearances called for such statements as essential to comfortable living in decent quarters, and to the contrary statements made to boon-companions or loose women, whose questions he might resent as referring to what was none of their business, it may be said that they are entitled to little weight; probably a lie one way or the other was of little matter to Blasii.ls. Of general public recognition by accjuaintances beyond those casually encountered in the vicinity of his residence, of introduction to his family, of decbrations to his relations, or at least to those with Whom he was on good terms, which would naturally be expected from a husband, there is no satisfactory proof. Practically the only evidence as to such declarations is that of Christian Storms. Inasmuch as they lived together for several years, it is quite natural that the question what relation they bore to each other suggested itself to other J'nembers of his family. In such cases evidence of repute in the family is admissible. Without discussing at length the evidence of the various members of the Storms family, (other than Christian) whose source of information seems to have been their tather (a gentleman who in his life-time put himself on record, under oath,as believing Blasius to be unmarri'ed,) it is sufficient to say that the reptite in the Chesebrough family \VIis divided, and the same may be said of reputeiullong his associates and friends. But a divided reputation is not sufficient to warrant the inference of marriage. Clayton v. Wnrdell, 4 N. Y. 230; Brinlcley v. Brinkley, 50 N. Y. 184. As to reputation in the CregierJamily, it is to be noted that the evidence of the consins Mrs. Irving and .YIrs. Franklin, and 01 the sistcl'in-law Mrs. George W. is principally, if not wholly, based upon what they heard from Mr". Rachel Cregier. The same ought, perhaps, to be said of the evidence of Josephine's sister, Almira, (Mrs. Sisson,) who was but 9 years old when the intercourse began, amI 12 years ('ld when it tenllinated. Rachel Cregier is deceased, but it appears that in 1859 she brought a suit in the superior court for the seduction of Josephine against Blasius, alleging that the connection between them continued between April 1, 1853, and November 16, 1857, and that complainant was born October \), 1857, as the result of such unlawful connection; und, further, that about October 1, 18.55, he enticed Josephine away from her mother's house, and kept her away two months. The case was tried on inquest, before Judge WOODRUE'F and a jury. Mrs. Cregier and the sister Almira were examined as witnesses, and there was a verdict for the plaintiff
therein of $2,500, which was subsequently paid. In view of this piece of record evidence, it is difficult to see how it can be contended that there was a repntation of marriage in the Cregier family. Oertainly no declarations of Rachel to that effect, nor any testimony as tC) the belief of others, whose information was derived from her, are entitled to much weight. She might have sought to save her daughter's reputation among other members of the family by saying she was married, but it must be assumed that she stated what she believed to be the truth when she brought the suit and testified on the trial. The complainant to the admission of the record and judgment roll in this seduction suit. It is well settled that, in cases of pedigree, family conduct is admissible evidence from which the opinion and belief of the family may be inferred. The judgment roll may fairly be considered competent evidence of family conduct; but if it be not, and if all evidence of the declarations of Rachel Cregier were excluded from the case as hearsay, then there would be left practically no evidence of repute in the Cregier family, except that given by Almira Sisson, which, as she was of such tender age at the time, is certainly of but little weight. Finally, though Blasius was liberally supplied with money, and after his mother's death in 1860 was a man of abundant means, Josephine never made any claim upon him during the 8 years of his life subsequent to the separation, nor Jar 14 years after his death did she assert any claim to the large estate which he left. Considered together, the testimony is not sufficiently strong to constrain the mind to accept it as a natural inference that the arrogant, selfish, dissolute man of 35 ever married the young girl of 16, whose feeble virtne yielded so promptly to his solicitations, who began lite with him as his mistress, and who left him without any effort to obtain from him, or his estate, the support which the law secured to her if she were his wedded wile.
et al, v.
(CirCUit Court, D. Washington, N. D.
Plaintiff's bill alleged that a patent of certain land was in 1872 issued to the heirs at law of one S., the heirs being his mother and several brothers and sisters, and the children of iteceased brothers and sisters; that plaintiff was married in 1870 to R., a son of a deceased sister; that R. died intestate, without issue, in 1871; that in 1870, after said marriage, the mother of S. conveyed her interest in the land to R. ; that by virtue of the deed, and the statutes of Washington relating to the rights of married people, the share of R. and of the mother of S., deeded to him, became the common property of R. and plaintiff. and on R.'s death plaintiJ'l'. became the owner in fee-simple of an undivided one-half; that defendants claimed the whole of the land under a conveyanoe made pursuant to a sale under a decree of the court, to which plaintiff was not a party. The bill sought to establish plaintiff's title to the shares claimed by her.. Held, that the bill was demurrable in not stating when and where S. died, or any facts by which the court could ascertain under what act of congress the patent was issued to his heirs, and what laws as to the property rights of married people were in force, or the residence of R. and his wife, (plaintiff,) or the date of the suit nnder which the sale and conveyance was made to defendants, or of any reasons for plaintiff's delay in suing.