CERTIORARI FORM XIII.-PETITION TO SUPREME COURT FOR CIRCUIT COURT OF APPEALS IN CASE INVOLVING [Application denied.] TO THE SUPREME COURT OF THE UNITED STATES OF AMERICA: The petition of Leonora A. Arnold and Thomas E. Arnold, her husband, for a writ of certiorari directed to the Circuit Court of Appeals, for the Second Circuit, to bring before the Supreme Court the case of LIONORA A. ARNOLD and THOMAS E. ARNOLD, her husband, Complainants and Appellants, VS. CHARLES A. CHESEBROUGH, individually and as Executor and Trustee under the Last Will and Testament of Margaret Chesebrough, and ELIZABETH LOUNSBURY, as Executrix of the Last Will and Testament of Stephen R. Lounsbury, deceased, Defendants and Appellees. The said petitioners respectfully show to this Court as follows: I. That your petitioners were, at the time of the commencement of this action, citizens and residents of the State of New Jersey, and the defendants were at that time citizens and residents of the State of New York. II. That on the 10th day of November, 1860, one Margaret Chesebrough, a widow, died, leaving her surviving as her only heirs-at-law, her two sons, Blasius M. Chesebrough, the father of the petitioner, Leonora A. Arnold, and Charles A. Chesebrough, one of the defendants in said action. III. That upon her decease said Margaret Chesebrough left a last will and testament, which was thereafter duly admitted to probate by the Surrogate of the City and County of New York, on the 26th day of November, 1860 (pages 4 to 8, Pleadings and Orders, vol. 5), in and by which, after making certain specific bequests, she devised the rest, residue and remainder of her estate, real and personal, to her executors and trustees therein named and appointed, to wit, said defendant Charles A. Chesebrough, said Blasius M. Chesebrough and one Stephen R. Lounsbury, in equal one-half parts to be held in trust by them, to collect the rents, issues and profits thereof, and pay one-half thereof to her son Blasius M. Chesebrough during his life, and the other half to her other son Charles A. Chesebrough, and upon the death of either of her said sons to pay and distribute and divide said one-half share and the accumulations thereof to and among the lawful issue of said deceased son; and upon the death of the remaining son to likewise to dispose of the other one-half share, and upon the decease of either son without issue, then to dispose of such one-half share to the surviving son (pages 4 to 8, Pleadings and Orders, vol. 5). IV. That thereafter and on about the 4th day of June, 1884, said executor and trustee, Stephen R. Lounsbury, who had duly qualified as such, departed this life, leaving a last will and testament, in and by which he appointed the defendant Elizabeth Lounsbury, his executrix (page 39, Pleadings and Orders, vol. 5). V. That thereafter and on the 16th day of April, 1866, said Blasius M. Chesebrough died intestate, leaving the petitioner Leonora A. Arnold him surviving, his sole lawful issue and heir-at-law; and thereupon said petitioner, under and by virtue of said last will and testament of said Margaret Chesebrough, became entitled to have and receive one-half of the said residue and remainder of the estate of said Margaret Chesebrough, consisting at the time of the commencement of this action of a large amount of real estate situate in the cities of Brooklyn and New York. in said State of New York, valued at upward of two million dollars at that time, and of personal property, and the proceeds of certain real estate sold, amounting to upward of two hundred and forty thousand dollars (pages 104-112, Pleadings and Orders, vol. 5). VI. That thereafter and on the 13th day of March, 1886, these petitioners, upon the refusal of the defendant Charles A. Chesebrough, as executor and trustee of said last will and testament of said Margaret A. Chesebrough, and upon the refusal of said Elizabeth Lounsbury, as executrix of the estate of the other trustee Stephen R. Lounsbury, to account for and pay over to her said personal property, and to deliver to her possession of said real estate after demand prior thereto duly made, filed a bill of equity in said cause in the Circuit Court of the United States for the Eastern District of New York, to have it established that your petitioner Leonora A. Arnold was the lawful issue of said Blasius M. Chesebrough and entitled to have and receive from these defendants the property theretofore demanded of them by her as aforesaid. VII. That the defendant, Elizabeth Lounsbury, interposed an answer denying any knowledge or information sufficient to form a belief as to the matters alleged in said bill of complaint, and the defendant, Charles A. Chesebrough, interposed his answer in and by which he denied that said Blasius M. Chesebrough and the mother of your petitioner, Leonora A. Arnold, were married, and claiming upon that ground that said petitioner, Leonora A. Arnold, was not the lawful issue of said Blasius M. Chesebrough, and entitled to take, have and receive under and by virtue of the terms of said will of said Margaret A. Chesebrough said one-half share, together with its accumulations of the rest, residue and remainder of her estate (page 215, Pleadings and Orders, vol. 5). VIII. That thereafter, and on the 24th day of February, 1891, after the taking and printing of a large amount of testimony, said cause came on for final hearing before Hon. E. Henry Lacombe, Circuit Judge, who thereafter, and on the 30th day of June, 1891, filed his decision to the effect that these petitioners had failed to establish that said Blasius M. Chesebrough and the mother of your petitioner, Leonora A. Arnold, were married, and dismissing said bill of complaint, but without costs; and thereafter, and on the 21st day of December, 1891, a decree in accordance with said decision was duly entered (page vol. ). IX. That thereafter and on the 3d day of May, 1893, said appeal to said Circuit Court of Appeals came on to be heard before Judges Wallace, Shipman and Wheeler (vol. 10, page 2). And thereafter and on the 24th day of October, 1893, said Circuit Court of Appeals rendered and filed two opinions (vol. 10, page 4), one written by Chief Judge Wallace and concurred in by Judge Shipman, holding that said petitioners had failed to establish a marriage between the father and mother of said petitioner, Leonora A. Arnold, and for an affirmance, upon that ground, of said decree. The other opinion was written by Judge Wheeler, holding that such a marriage had been established, and for a reversal of said decree, and in favor of awarding to these petitioners the rights sought to be obtained by them in said action; copies of which said opinions are hereto annexed and marked respectively "Exhibits A and B." X. That the principal facts established by the evidence in this case as to a marriage between Blasius M. Chesebrough and the mother of your petitioner, Leonora A. Arnold, all of which was uncontradicted except that of the mother, who was contradicted by herself alone, are very briefly as follows: That in the month of February, 1854, Josephine Cregier (the mother of your petitioner, Leonora A. Arnold), then about sixteen years old, and a Christian girl, who had received a religious and moral training at the hands of her mother, a respectable widow of the name of Rachel Cregier residing at Sixth avenue and Twenty-eighth street in the City of New York, met and formed the acquaintance of Blasius M. Chesebrough, at a hightoned and highly respectable school for instruction in dancing, at No. 16 Bond street in said City of New York, where she was being prepared to enter society (Complainant's Proofs, vol. 2, pages 604 to 606; vol. 3, pages 1175, 1176, 1179, 1183, 1165, 1288, 1289, 1300). That after about six or seven months of courtship she and Blasius eloped and went to the City of Baltimore, in the State of Maryland, where they both claimed to have been married (Complainant's Proofs, vol. 3, pages 1179-1183). That a marriage between them was duly solemnized there at this time is proven by the only living party to it; viz., the wife (Complainant's Proofs, page 1387, vol. 3, page 1649, vol. 4). That thereupon they took up their abode at the Everett House, and from that time forth they continuously, publicly and notoriously lived together as husband and wife until their separation four and a half years thereafter (Complainant's Proofs, vol. 3, page 1183; vol. 1, pages 70-71). During this cohabitation there were born to them two children, the older since deceased, and the other, the said petitioner, Leonora A. Arnold (Complainant's Proofs, vol. 3, page 1387; vol. 1, pages 49 and 427; vol. 4, pages 1545 and 1608). That such cohabitation of the father and mother of your petitioner, Leonora A. Arnold, as husband and wife during such period of time, was well known to the members of both of the families of said petitioner's father and mother; and that upon the birth of said petitioner, Blasius' mother sent to them presents, consisting, among other things, of an outfit of infant's wear, etc. (Complainant's Proofs, vol. 2, page 950, and vol. 3, page 1234, fol. 3702; Defendant's Proofs, vol. 2, page 293, fol. 879). That the birth of said petitioner was at the time duly recorded by the attendant physician with the knowledge and consent of all the parties, and duly registered as required by law, in the Bureau of Vital Statistics for the City and County of New York (Complainant's Proofs, vol. 4, pages 1546 and 1608). That the birth and death of the first child born to the father and mother of your said petitioner was duly and publicly announced by both its parents. That this cohabitation was that of husband and wife, and that it was continuous and apparently and reputedly matrimonial, is indisputably established by the admissions and declarations of both parties to it made during that time, and also by the testimony of twenty-two persons who knew of this cohabitation and were acquainted with the parties themselves or with the members of their respective families. See testimony of Mrs. Huldah H. Clapp, Complainant's Proofs, vol. 1, p. 65. James M. Marvin, Complainant's Proofs, vol. 1, p. 50. Samuel E. Meade, Complainant's Proofs, vol. 1, p. 186, 190, 191 and Mrs. Maria Van Vleck, Complainant's Proofs, vol. 1, p. 174 to 184. Mrs. Robert Franklin, Complainant's Proofs, vol. 1, p. 425. Mrs. J. Fitzgerald, Complainant's Proofs, vol. 2, p. 949 and 950. Edwin Wood, Complainant's Proofs, vol. 2, p. 487. Mrs. Elizabeth Blum, Complainant's Proofs, vol. 3, p. 1526 to 1528. Miss Eliza M. Storms, Complainant's Proofs, vol. 3, p. 991. Mrs. Almira W. Sisson, Complainant's Proofs, vol. 3, p. 1179 to 1183. Philip B. Segee, Complainant's Proofs, vol. 3, p. 1415. Certificate of birth of child, Complainant's Proofs, vol. 4, p. 1546 and 1608. Judgment for board against Blasius M. Chesebrough for himself and Letters, Complainant's Proofs, vol. 4, p. 1621, 1625 to 1648. Affidavit of Josephine Chesebrough, Complainant's Proofs, vol. 4, p. Powers of attorney of Josephine Chesebrough, Complainant's Proofs, Hotel Records, Complainant's Proofs, vol. 4, p. 1539 to 1545. XI. The defendant Chesebrough's evidence consisted entirely of the four classes hereinafter mentioned: First-The testimony of some twenty-six persons, some of whom testified to the effect that they had not heard that Blasius was married, while others said that, after his separation from his wife, they had heard him say that he was not married, or that he would not marry the best woman living. None of these persons were ever acquainted with Josephine, none of them knew of this cohabitation between her and Blasius during the time it continued, and many of them never knew Blasius and never spoke to him. Such testimony was inadmissible, as has been expressly held by the New York Court of Appeals, in Badger vs. Badger, 88 N. Y. 546-554, § 556. See testimony of Jonas Holzwasser, Defendant's Proofs, vol. 1, p. 32. Harry Hill, Defendant's Proofs, vol. 1, pp. 267, 268. John D. Clark, Defendant's Proofs, vol. 1, pp. 276, 285, 287, 294. Francis Nelson Drew, Defendant's Proofs, vol. 1, p. 316. James McPyke, Defendant's Proofs, vol. 1, p. 358. |