46 F. 700 | U.S. Circuit Court for the District of Eastern New York | 1891
This is an action brought by Leonora A. Arnold, who claims to be a legitimate daughter of Blasius More Chese-brough, 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 grand
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, pompons, 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 clav. In 1854, when he first encountered Josephine Oregier, (though some testimony would make the date 1853,) he was
To discuss at length this testimony, extremely voluminous, and a iarge part of it taken under exception, is - wholly unnecessary. The point to be decided is purely a question of fact. The conclusion reached, after consideration of a multitude of circumstances, peculiar to the case, would be of no value as a precedent in other cases, where the circumstances were not identical. It will be enough, therefore, to indicate, with great brevity, some of the reasons which lead to the conclusion that Blasius M. Chesebrough and Josephine Cregiey were not husband and wife. The intercourse was originally meretricious, and there was no reason why Blasius should 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 solicitation, and was living 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 reason 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 same rooms, and indicating to hotel-keepers, 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 frequently live, in which it may be said they must live if they frequent respectable hotels; and, when it appears that .their living 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
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 persons, 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 Blasius. Of general public recognition by acquaintances beyond those casually encountered in the vicinity of his residence, of introduction to his family, of declarations 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 members 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 father (a gentleman who in his life-time put himself on record, under oath, as believing Blasius to be unmarried,) it is sufficient to say that the repute in the Chese-brough family was divided, and the same may be said of repute among his associates and friends. But a divided reputation is not sufficient to warrant the inference of marriage. Clayton v. Wardell, 4 N. Y. 230; Brinkley v. Brinkley, 50 N. Y. 184.
As to reputation in the Cregier family, it is to be noted that the evidence of the cousins Mrs. Irving and Mrs. Franklin, and of the sister-in-law Mrs. George W. Cregier, is principally, if not wholly, based upon what they heard from Mrs. 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, and 12 years old when it terminated.
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 9, 1857, as the result of such unlawful connection; and, further, that about October 1, 1855, he enticed Josephine away from her mother’s house, and kept her away two months. The case was tried on inquest, before Judge Woodruef and a jury. Mrs. Cregier and the sister Almira were examined as witnesses, and there was a verdict for the plaintiff