Cunningham v. Burdell

4 Bradf. 343

• Court: New York Surrogate's Court
• Decided: August 15, 1857
• Status: Published

Opinion

The Surrogate.

By the law of this State, marriage is treated merely as a civil contract, not requiring legal forms, religious solemnities, nor any special mode of proof. It is obvious, however, that the security of property, domestic happiness, and the order and well-being of society are deeply involved in the erection of all reasonable barriers against the perpetration of fraud in reference to an institution which lies at the very basis of private and public welfare. The policy of the law is opposed to concealment of the marriage contract. Publicity affords security. Upon this application for letters of administration, there is an effort to establish a secret marriage. There was no open cohabitation or acknowledgment, no mark or token of the relationship; to external appearance the parties lived as single persons; and the alleged contract was first announced when the lips of the decedent were sealed by death. In such a case there is no presumption in favor of marriage; the presumption is against it. There is no ground for invoking the charities of the law; but the concealment excites suspicion, and calls for rigid scrutiny. If a person will enter into the honorable estate of marriage, in privacy, excluding carefully the usual public, social, and domestic evidences of the nuptial contract, so that the wife is not known until she become a widow, the claim should be viewed with jealousy, and strict proof be demanded.

At the trial, I allowed the widest scope of inquiry the law permits, in order that no means for eliciting the truth might escape. The number of the witnesses examined in this cause, the extent and complication of the testimony, and the great variety of details presented, have rendered a review and analysis of the material facts protracted and laborious; but the grave and solemn duty to which I was called, and the importance of the question at issue in its private and its social bearings, imperatively required that no pains-taking should be spared in exhibiting the grounds of the conviction to which I had arrived.

On the evening of October 28, 1856, the Rev. Uriah Marvin united two persons in the bonds of wedlock at his residence, No. 732 Greenwich street, in this city. One of the parties was Emma Augusta Cunningham; the witness was her daughter, Margaret Augusta; and whether the other party was Dr. Harvey Burdell, is the question submitted for my decision. This must be determined upon the evidence before me, after discarding that which is unworthy of faith and credit.. The point presented for solution is a pure question of fact: Has the claimant established a ceremonial marriage with the decedent

I. I shall first inquire where the decedent was, about the period of time when the transaction was on foot. The claimant has shown to my entire satisfaction that on Friday, the 24th, Tuesday, the 28th, and Friday, the 31st of October, he was in the city of New York, and was present each of those days at the sessions of the Board of Directors of the Artizans’ Bank, probably from 9| or 10, to 11 or 12 o’clock. He left for Saratoga on Friday, the 31st of October, and returned to his home the evening of Monday, November 3. Mr. Snyder states, that at Saratoga he said he came from the West. If he had been to the West shortly before, the substance of the remark might have been true, but its exact purport misunderstood. The contestants allege that it was substantially true, and that the decedent was at. the village of Herkimer on Saturday, Sunday, and Monday, 25th, 26th, and 27th of October. The claimant, on the other hand, adduced proof to show he was then in the city of New-York.

1. It appears from the books of the Lafarge House, that Dr. Burdell paid for his board on two occasions when intending to leave for a few days; no deduction was made for absence, and if he were at Herkimer at the time in question, his bill was running on at the hotel. Nelson Barlow deposed that Dr. W. B. Roberts performed some dentistry for him, Sunday, October 5, and Sunday, October 26; that on the first occasion “ another person was present the whole time,” whose name he did not recollect, and that on the second occasion he was introduced to Dr. Burdell. These dates are determined by entries in Dr. Roberts’ book. Dr. Roberts, as to the 5th of October, says, he does not know who was present then; he thinks Dr. Burdell was in but once when he was attending to Mr. Barlow’s teeth, and adds: “ the only way I had of determining which of those Sundays it was, was the conversation about "Mr. Fraser’s resigning, which had taken place two or three days before.” How, Dr. Burdell, according to Mr. Barlow, conversed also generally about the Artizans’ Bank, and its officers, and wished him and Roberts to take stock in the institution. So far, the interview might have happened on the 5th of October, nor does he remove it positively to the 26th, when he says, “ he also spoke of Mr. Fraser, as well as I recollect, and his resignation as Vice-President.” The general conversation about the bank gives no preference to one date over another, and everything turns, not on the main subject, but upon the certainty or uncertainty of “ the resignation” having been mentioned at the time in question—a collateral or incidental which might easily become the subject of mistake.

Dr. Uhl states that he met the decedent in Bond street, in October; he designates the time as Monday, the 27th, and collocates the interview with the circumstance that he was then on his way to attend a patient at Brooklyn; but he produced no memorandum or entry to indicate the date of that visit. The occurrence of two events on the same day proves nothing as to the time, unless the date of one of them be known. Here the date of neither is determinable, except by the memory of the witness, and thus we are reduced to his bare naked declaration in June, 1857, that he saw Dr. Burdell in Bond street, on the 27th of October, 1856, seven months before.

Mr. Douglas testifies that he was sitting in the parlor of the decedent’s residence conversing with Mr. Eckel, the afternoon of Sunday, October 26, when Dr. Burdell came in, inquired if some person had called for him, addressed Mrs. Cunningham, who rose, and the two left the room together. The witness marks the date from the circumstance that he called to see Mr. Eckel in respect to a bookcase, for the purchase of which he was negotiating. It is manifest, however, from Mr. Smith’s testimony, that the negotiation was pending several weeks; and I should judge, from the intimacy between Mr. Eckel and Mr. Douglas, and from other facts, that the latter was not an infrequent visitor at the house. Still, there is a degree of positiveness in his testimony which cannot be overlooked; and if the bookcase was delivered on the 28th of October, he is to be taken as very definitely affirming the presence of the decedent at 31 Bond street on Sunday, the 26th.

Mr. Fraser expressed the belief that he saw the decedent every day from the 24th to the 28th of October, and even in the evening of the 28th. His language is not very positive, “ that is my impression, if my memory serves me right.” Mr. Eraser was impressed with the idea that his resignation was a frequent topic of conversation between him and the decedent during this period; hut it appears that the resignation, for some time after it occurred, and the causes leading to it, for some time before it occurred, were the subject of mutual consideration between himself and the deceased, so that it would be difficult to identify any particular day. He is quite clear, however, that the Doctor was at dinner on Sunday the 26th, from recollecting that Mrs. Eraser was absent from the table that day in consequence of sickness, and the Doctor sat by him and his son, who was then home from school. Clarence Eraser states, that he “ saw Dr. Burdell every day,” while he was home last fall; but in this he is certainly mistaken, as to the 1st and 2d of November, when the decedent was at Saratoga and the witness was in New-York. He also says: “ my impression is, I saw him Sunday after my father’s resignation,” at dinner; “ he filled a tooth for me the week after that Sunday.” There is no relation between this piece of dentistry and the dining on Sunday, except such approximation of time as the memory might afford. I think the importance of the testimony of these two gentlemen hinges mainly, if not entirely, on the fact, whether the absence of Mrs. Fraser was limited to that single day. Augustus Prime says, the lady was absent “ once or twice on Sundayand Clarence Eraser that his mother was unwell and absent from dinner the previous Sunday, October 19, and that she “ frequently stayed away when she was not much unwell.” In this case, then, we find, as well as in that of Dr. Roberts and Mr. Barlow, a duplication of the most important feature tending to fix the time—a repetition of the collateral or extrinsic circumstance existing in the memory of the witness as connected with the presence of the decedent. This, of course, calls for some other fact to give one date the preference over the other.

An effort was made to show that the decedent was attending as a witness in the United States Circuit Court, Monday, the 27th October, in the case of Warner and Griffin. That case was called on Monday and Tuesday, and on Wednesday was postponed for another cause, which had precedence. On one of these occasions, Dr. Burdell was introduced to Judge Dean, counsel for the defendant, and complained of the postponement. Mr. Taylor places the event on Monday, Dr. Putnam on Tuesday, while Mr. Parsons says that Judge Dean was not in court on Monday, and Mr. Barnard that he was not there on Tuesday, but attended for the first time on Wednesday. Mr. Lane testifies that he served a subpoena in that cause on the decedent, who at that time accompanied him to see Dr. Main. On this occasion, Dr. Putnam saw the decedent conversing with Dr. Main on the walk. Now what was this date ? Dr. Putnam is quite certain it was the day he was notified to attend the trial, and that on the next day he met both Dr. Burdell and Judge Dean in court. That next day was Wednesday, as I judge from the weight of the evidence. It could hardly have been Tuesday, for Mr. Barnard says, Judge Dean was not present then, and the proofs show that the' decedent was at the Artizans’ Bank until a late hour in the morning; nor Monday, for then the subpoena would have been served on Sunday. The attorney in the cause had died; it was necessary that counsel should be called in, and the day to which the cause would be postponed was entirely uncertain, before the court opened on Monday morning. Yet Mr. Lane says the subpoena was handed to him to serve at 7 or 8 o’clock in the morning. Would a subpoena have been drawn Monday morning, the 27th, at 7 or 8 o’clock, returnable on the 28th ? I think not; and am satisfied it was on Tuesday, and not on Monday, Mr. Lane served Dr. Burdell. On a review of this evidence, and bearing in mind that Mr. Fraser and his son, Dr. Roberts and Mr. Barlow, determined their dates by facts which had duplicates in their main features, I think it manifest that Mr. Douglas stands alone, as presenting any positive testimony that the decedent was in New-York at the time in question.

2. Was he at this period in the village of Herkimer? Mrs. Wilson, the decedent’s cousin, states that he was at her house, in Herkimer, on Saturday, Sunday, and Monday, the 25th, 26th, and 27th of October, and accompanied her to church on Sunday; that she expected to visit her sister, Mrs. Wiliams, at Brooklyn, the same week, and requested the Doctor to wait a day longer for her; she had written to her sister she would be with her on Tuesday, but sent word by the decedent she would be down by Wednesday or Thursday; on Wednesday she left Herkimer, her husband remaining on account of the approaching election; and at Albany she took the steamboat “New World,” arriving at New-York as late as 3 P. M., on Thursday. The clerk of that steamboat proved that the name Wüson was entered twice in the register of the ladies’ cabin on 29th October, and that the boat was detained until 2:20 P. M., the next day. Mrs. Williams testified she had expected her sister, Mrs. Wilson, on Saturday, October 25, her birthday; received a letter stating she would come the next Tuesday; that on Tuesday evening the Doctor called, stated that he had been to Herkimer, had arrived that morning, and that Mr. Wilson would come on Thursday. He spoke of the raising of a liberty pole while he was at Herkimer, and mentioned that he had been at church. On Thursday Mrs. Wilson arrived late in the afternoon, and stated that her husband would have accompanied her, but for his wish not to lose his vote. Mrs. Williams did not produce the letter she referred to, but she is corroborated in most of her material statements by two young girls, Phebe Lipper and Hannah Denman. The birthday of the latter fell on Saturday, October 25, when she had expected a party, if Mrs. Wilson should arrive. This is the only time Mrs. Wilson was in New-York, from August, 1856, until the spring of 1857.

Eli Taylor, proprietor of a hotel at Herkimer, purchased by him of Dr. Burdell, states that a lawsuit, to which he was a party, was tried at his house on Monday, October 27, the last day to which the cause could be adjourned, the summons having been issued three months. He was under the impression he observed the decedent conversing with his counsel, Mr. Earl, during the progress of the trial. He saw him at church the day previous, and spoke with him about it. He says the decedent arrived late in the afternoon of the 25th, and he told him that he had been to New-York a few days before, and on passing Bond street had thought of giving him a call. This witness farther added, that he left home Friday, October 17, registered his name at the Delavan House in Albany, arrived in New-York on Saturday, went to Danbury the same day; returned to New-York on Monday, and reached Herkimer the next day. His brother and sister-in-law, residing in New-York, testified that this visit was three weeks after the decease of their daughter, on the 3d of October ; the latter says, “ about three weeks after, I think.” This is not a very definite contradiction; the difference is between two weeks and three; if three, then Mr. Taylor was not present at the trial of his suit on Monday, October 27. Mr. Taylor is inaccurate, however, in one respect. He says the decedent informed him Mrs. Wilson expected to have made the journey with him from New-York. This circumstance occurred at the end of November, and not in October. Mr. Taylor had a register at his hotel, but at this period it seems not to have been generally used. Cephas Johnson, the Justice who tried the cause of Taylor and Gray, places the trial on the 27th October, the last day to which it could have been adjourned; for which reason he made a special appointment at Herkimer on Monday, his usual court days being Tuesday and Friday. He recollects that, during the trial, a gentleman came into the room and conversed with Mr. Earl. After he left, he inquired of Mr. Earl who he was, and the reply was, “ Harvey Burdell.” He states also, that there was a political convention at Herkimer on Saturday, October 25. Isaac A. Munson, who has been Justice of the Peace and County Clerk, deposed that he saw the decedent Saturday evening, October 25, at the celebration of a fire company, as the witness was on his way to an unfinished house, into which he moved November 13; that he again observed him on Sunday, going to Mrs. Wilson’s, and on Monday, at the hotel where the trial was in progress. Christopher S. Witherstein, County Treasurer, testifies, that at the celebration of the fire company of which he was foreman, Dr. Burdell came up to him in the street, and made some commendatory remarks in relation to a silver trumpet won by the company at the Montgomery County Fair in September. The company were in the habit of turning out only on the last Saturday of each month from April to November. On this occasion there was a parade and a torchlight procession. Dolphus S. Payne was absent from Herkimer to make a political speech on Saturday, 25th of October. He returned on Sunday, and states that he saw Dr. Burdell at tea, who conversed with him in reference to the political meeting to which he had been, and also in regard to his attendance at church that day. On Monday, at dinner, they spoke together about the suit of Taylor and Gray. Mr. Earl, who was counsel for Taylor in that trial, says, that the decedent called at his office on Monday morning, and was anxious he should aid him in procuring the discount of some notes. He came into the room at the trial, and conversed with him. The Justice inquired who he was. He identifies the time by a hickory pole raising, and a county convention on Saturday. He was desirous his brother, Judge Earl, should try the cause, in order that he might attend to the Doctor’s business, and likewise to a political engagement'growing out of the convention. Samuel Earl, County Judge and Surrogate, corroborates his brother in regard to the suit and the convention, and is positive he saw the decedent at dinner October 27, and conversed with him in reference to the trial. I have already stated, that when he arrived at Saratoga, October 31, Mr. Snyder testifies that the decedent said, “ he came from the West.” This, of course, was not so at that precise instant; and the witness must have mistaken the expression. At Herkimer, he spoke of going to Saratoga to Mr. Earl and Mr. Taylor; and stated to Mrs. Wilson, on Monday, that he had intended to go there, but had been detained by the court, so that he could not find a connecting train. Mr. Lafton, who came to New York by the cars and the steamboat “New World,” on the 27th, did not see the decedent, but that oversight might very well have happened without raising a doubt of the decedent’s presence. The evidence I have just considered is fortified by the printed notices of the meeting and the convention, and by the minutes of -the Justice of the Peace. The docket of the judgment in Gray and Taylor was irregularly entered in the docket-book out of its date; but the original minutes of the trial were produced, dated October 27, a legal entry made by a public officer at the time of the occurrence, and entitled to the highest credit. Is it possible, then, this visit did not take place in October, and that so many witnesses, speaking to so many and various circumstances, all concurrent, should be mistaken? If some of these events could be confounded with like occurrences nearly contiguous, others could not. Mrs. Wilson made but one visit to New-York that fall. The same remark applies to Mr. Taylor. There was but one county convention held at Herkimer, and but one trial of the case of Taylor and Gray. Again, Dr. Burdell was seen in Herkimer but occasionally, and his presence there would naturally attract attention. The events themselves which occurred at the time were especially noteworthy in a quiet country town. On any one single date connected with one single fact witnesses may err; but the chances of error diminish as the coinciding circumstances increase in number, and the evidences accumulating from various independent sources converge upon the same point, fitting harmoniously together, and gathering strength by mutual corroboration. This view impressed my mind when I heard the testimony, and has been confirmed by subsequent examination and reflection. There is nothing I can perceive sufficient to impugn or shake it, and it must stand as my conclusion upon the facts.

II. I now approach the proofs produced to sustain the allegation that Dr. Burdell was a party to the ceremony, the evening of October 28.

1. Miss Helen Cunningham testifies that the decedent gave her mother a plain gold ring, “ put it on her finger,” and “ told her, if she did not like it, she could get it changed.” This circumstance is important, if it occurred about the time of the marriage, Mr. Silverthau, the jeweller, proved, that “ some time in 1856,” Dr. Burdell purchased of him a plain gold ring, but he could not identify it. As to the date of the gift, Helen said, “ I cannot remember the date; I think it was before October last; it was before the 28th of October, I don’t know whether it was a week before; I don’t think it was the day before.” Her sister, Augusta, says, this same ring was put on her mother’s hand by the decedent the night of the wedding, in the street; but she also states very distinctly that it was given “ in July.”

2. In the afternoon of the 28th of October, Miss Helen Cunningham testifies that her mother “ was dressing in her room, and she said ‘-she was going out with the Doctor;’ ” “ I think between seven and eight, very near eight, mother came down in the parlor; she and the Doctor both came in together ; mother came to about the centre of the room, and the Doctor leaned against one of the pillars by the folding doors; she then said she was going out with the Doctor, that the suits had all been withdrawn, and everything was to be settled, and that was the 28th day of October; mother went out of the room and the Doctor with her; Augusta was there, too; she was standing near the door in the hall. * * They went out together, the three.” Elsewhere she says: “ I was a little surprised she was going out with the Doctor, as they had not been out before while they had this difficulty; and I asked her whether she was going out with the Doctor.” * * “ The only thing I know with regard to my mother coming back that night was, I heard some one in the hall; I went to the bannisters and looked over, and saw my mother, Augusta, and the Doctor. The Doctor said something, and they were both laughing when they came up; by both, I mean Augusta and mother. * * They all went to the Doctor’s back room, second story—I then went up stairs to my room and retired. * * It must have been near ten o’clock when they came in. The Doctor was laughing, I believe.” Before the Coroner, Helen stated that she did not see the parties on their return, and had not seen Mr. Eckel since breakfast, while on this trial, she said, that Mr. Eckel, on coming up from tea, spoke, with her, and was afterwards two hours in his room with a visitor. There are discrepancies, also, between her account and that of Augusta’s; but still I am not inclined to impugn the main features of the narrative just given. The value of the occurrence as a link in the chain of evidence depends entirely upon the time. It might very well have happened on the evening of the 23d of October, the day the suits were settled, and it comports with that date more than with the date of the marriage, the drift of Mrs. Cunningham’s remark relating to the settlement of the suits alone. It is manifest, also, that Helen first heard at this time of the settlement of the suits, and it is not likely that information so interesting would have been withheld from her five days.

3. The narrative of Miss Augusta Cunningham, in reference to the marriage, I shall give mainly in her own words:— “ The Doctor first requested me to witness the marriage ceremony on Sunday morning next preceding the marriage; the Doctor first spoke to ipe about it; he asked me if I would be willing to be a witness to a marriage between mother and himself; he also stated, that he wanted me to keep it a secret until June next; that he then intended going to Europe with mother; he also stated that he would take me with them, if I wished to go; my mother was then present; he asked her if I could keep a secret; and she said, he must ask that question of myself; he also stated to me, that mother was going to Goshen to see if she could get Dr. Snodgrass to come in town to marry them; I asked the Doctor if it was to be at the house; he said it was to be there, to take place at the house; I then asked him why he wished it kept a secret; he said that he had promised Demist Hubbard that he never would marry any one while she was single—that she was the only encumbrance that he had on his hands at that time, and that she was to be married before June next; mother told me I should not ask any more questions about it; I then left the room, leaving the two there together. * * The next morning the Doctor told me mother had gone to Goshen for Dr. Snodgrass. * * I don’t think he spoke about it again until Tuesday morning, before breakfast, between seven and eight; he then asked my mother what her age was; she told him—she said thirty-five. * * He had a paper at that time with him with Mr. Marvin’s address, which Mrs. Snodgrass had given mother at Goshen. He stated that he was going to the bank, and that he would see Mr. Marvin before he returned. I did not see him then until six o’clock in the evening—he was in the hall, he merely made the remark, saying, ‘ I have accomplished it.’ ” The witness then describes the preparations and the departure from the house, stating, that as they were passing out, they met Helen “ in the hall, the front halland her mother told her “ to remember this night,” but mentioned “no reason.” She continues the account by stating that this was between seven and eight; elsewhere she says, “ between six and seven, I think, near to seven I think that after leaving the house, her mother said she “ had left her gloves,” and the two stopped at Mrs. Sallenbach’s half an hour, while the Doctor went to buy gloves; he bought them, and the party then proceeded to the clergyman’s, where the ceremony was performed. On the way home, she made the remark to the Doctor, “ What would he say” should she disclose the marriage ? and he answered he would “ kill” her. Her mother inquired why the decedent had not given Mr. Marvin the ring ? He replied, “ He did not ask for it; he would put it on her finger, and say a few words, and it would do just as well; he then put a ring on her finger in the street. The party arrived at home about ten o’clock.” In regard to cohabitation, she testifies, that the newly married couple slept together that night, and adds: “ My mother slept with the Doctor in his bedroom when Mrs. Snodgrass was there; I generally stopped there in the morning to know if she had any word to send down stairs; stopped at the room door, knocked—she would answer; it was the back room she slept in; I did so almost every morning from the time of the marriage, and she always answered me; that continued until some time in December—until the time of my sister’s sickness.”

In weighing testimony, and especially in comparing statements made by the same witness at different times, regard should be had to the infirmity of the memory, and the likelihood, even with an honest and ingenuous person, of variance in respect to collateral or circumstantial incidents. I am disposed to make every possible allowance for such accidental discrepancies as might be reasonably expected in testimony given at considerable intervals, under circumstances of painful interest, agitation and excitement; but on comparing the evidence given by this young lady at the inquest, and before me, I am constrained to notice important variations, manifestly occurring to suit present exigencies. Before the Surrogate, she stated that the Doctor was the first one who spoke to her on the subject of the marriage, and he did so first on the morning of the 26th of October. Before the Coroner, she stated her mother was the first who spoke about it; she did so a month or two previously, and the witness immediately after—on the same day—had a conversation with the Doctor, to know if he was willing she should be a witness. Before the Surrogate, she stated the Doctor said her mother was going to Goshen the next day, to invite Dr. Snodgrass to perform the ceremony. Before the Coroner, she stated her mother said the time was not decided. Before the Surrogate, she stated that the Doctor mentioned to her, as the reason for secrecy, a promise to his cousin not to marry whilst she remained single. Before the Coroner, she stated that the Doctor “ never said anything to her” about the reason, but her mother had remarked it was from fear of being laughed at, after his professions of celibacy. At the inquest, the Rev. Mr. Marvin is reported to have testified something in relation to making the appointment for the wedding at an hour in the evening after he returned “ from a religious meeting.” Miss Augusta was examined after this statement, and when asked in regard to the time in the evening the wedding took place, said, “ it was after the minister returned from meeting. Q. About how late ? A. He came there about eight o’clock, I think, and said he had to go to á prayer meeting, and if we would come back in an hour of an hour and a half, he would be in from the meeting; Q. Well, did you go back in an hour ánd a half? A. We did. Q. That would bring it about half-past nine or ten o’clock? A. Yes, sir; somewhere about that time.” Before the Surrogate, Mr. Marvin stated that the marriage took place at the time appointed; He had not been occupied or detained by any clerical duties, and remarked, when the parties came in, “You see I am punctual.” Augusta, who was examined subsequently, then testified for the first time, that the cerémony took place at eight o’clock, and the clergyman, on coming into the parlor, said, “You see I am punctual.” Before the Coroner, nothing was stated by her about the ring, or the visit to Mrs. Sallenbach which appeared in proof after she was examined, and the latter circumstance was first introduced by her before the Surrogate. Theré are other contradictions between the statements made by the witness at the inquest and at this trial, in reference to Mr. Eckel, the cohabitation of the decedent and her mother, and the lease of the premises 31 Bond street; but the variations I have noted are so adapted to suit the changes and phases of the case, and the evidence of other witnesses, that it is not important to pursue further this line of comparison.

Thus far we have the positive declaration of one of the claimant’s daughters to the identity of the decedent as a party to the ceremony performed by Mr. Marvin. But she stands self-contradicted on important facts: her statements have varied from time to time, and the minute particularity with which she has given conversations with the decedent relative to the marriage on the Sunday and Monday before, brings her in direct collision with the mass of testimony, showing that the decedent was in Herkimer at the very time these preparations for the nuptials were in progress. It is to be observed, also, that the ceremony was appointed for eight o’clock. The parties would naturally leave Bond street in time properly to meet that engagement—the .oversight as to gloves was not noted until after they left—'yet they passed down Broadway beyond Bleacher street, some distance, tarried at Mrs. Sallenbach’s half an hour, while the Doctor was in quest of gloves, which might readily have been obtained on the way; and after this long delay, proceeding on foot, though stages were at hand, still they arrived at the clergyman’s house, in a distant part of the town at eight o’clock. This was all accomplished in the space of an hour at the farthest, while their direct return home, after the ceremony, occupied nearly two. Suppose the proof to stop here: could a secret marriage, carefully kept concealed during the decedent’s life time, be established as against him on the proof of a single witness standing on these trials in such an attitude as this ? Clearly not. In the face of such discrepancies and contradictions, the court would be compelled to say the allegation had not been proved. It remains to be seen how far this difficulty is remedied by other evidence.

4. The occurrences connected with the marriage are thus stated by the clergyman. The gentleman first called, the morning of the 28th of October, and requested him to officiate at a marriage ceremony. This interview was before twelve o’clock; he would not say it was before eleven; it might have been between nine and twelve. He took a memorandum of the names and other particulars for his register, which were ascertained by interrogation. From his habit on such occasions, he thinks something was said about bringing a witness, but the name, of the witness was not communicated until the evening. The party requested him not to publish the marriage, and an appointment was made for eight o’clock that evening. At the designated time, the gentleman called with two ladies, and the marriage-w.as performed. The .man was “ awkward,” as if not knowing “ how to act.” Mr. Marvin said,he had a “faint impression” that the request not to publish the marriage was renewed in the evening by the gentleman, not by the lady he was “ sure.” The.man paid him a fee of $10; something .was said about his calling for a certificate the next day; “ he wanted a certificate and there the matter terminated. The certificate is dated October 29, and was delivered the morning of that day, before twelve o’clock. The man “ sat down in a chair and read, it to himself“ appeared to read it with deliberation“ when he got through reading it, he nodded his head, and said, ‘ all right,’ or something to that effect.” “ He made no observations about the spelling of the name Berdell; did not ask me to make any correction. I don’t know of any more conversation—that was the substance of it; he then left.” On the point of recognition, Mr. Marvin said: “ Since the murder, I have been very much interested in the matter, and have thought a great deal of it; I have recalled the features and general appearance of the deceased, and compared them with the features and general appearance of the man I married; and the more I have done so, the more I am convinced that the man I married was Harvey Burdell.” On being asked if he had any doubt whatever upon the subject, he replied, “ none whatever.”

5. In regard to the certificate, there are several circumstances deserving attention. The place of nativity of the lady is stated at “ New-York City,” that of the gentleman, “New-York.” Why this difference ? The first is particular, the last general; the first was known; was the last unknown ? Certainly if “ New-York” be taken as applying to the city, we then encounter the fact that Dr. Burdell was born at Herkimer. Again, we find from the testimony of Mr. Olney, who presented a bill to the Doctor, December 27, that he was quite ready on a trivial occasion to observe such a mis-spelling of his name as Berdell. How that is the precise error committed by Mr. Marvin in the marriage certificate, and he thought it so material, that when it was accidentally discovered he altered the register. But the mistake was unheeded by the bridegroom. The occasion was important, the certificate was “ wanted”—wanted as evidence—its accuracy was of consequence—not being ready at night, for it is dated October 29, it was called for the ensuing morning; it was read with deliberation—the party sitting down in a chair and scanning it—and it was pronounced “ all right.” "Was that uttered by Dr. Burdell ? Still further, the marriage was secret, and to be kept secret. Was it probable, in view of such clandestinity, that the decedent would call at the clergyman’s house in open daylight, with white gloves on his hands, and yet that fact is distinctly testified to by the domestic, who admitted the person calling for the certificate. At the first interview, as the man was leaving the door, Rev. Mr. Marvin stated, he thought he saw “ daylight between his whiskers and his face,” at the side, from the middle of the the ear to a point on a line with the mouth. “ I thought they were false whiskers, and had sprung out a little“ I remained so impressed up to the second interview;” “I did notice particularly at both the next times; at those times I did not notice that they were false; it would have probably operated as a bar to my marrying them, if I had discovered any deception.” Again: “ it was my design not to perform the ceremony if I discovered deception“ I saw no indication whatever at the two last times that the whiskers were false. The impression made by my first observation was removed.” Now, the suspicion in regard to the whiskers being false was not excited at the first meeting while the person was in the parlor, nor till he was leaving the door in full daylight. At the time of the marriage there was only one gas-burner lighted in a chandelier; and on the third occasion it does not appear whether the observation was renewed at the door. If they were false whiskers, and “ had sprung out a little,” at the first interview, it does not follow that the same accident would be repeated. In any event, the impression made on the mind of the witness was so strong as to be the subject of remark in his family and elsewhere. Dr. Parmley says, he “ dwelt on the false whiskers;” and I cannot but regard it still as a suspicious circumstance.

6. At the time of the solemnization of the marriage, there were two domestics in the other parlor, privately in the dark, observing the proceedings. Only one of these was examined On the trial. Sarah states, that she let the parties in at the doór, and showed them to the parlor ; “did not take much notice of the into; he was a nice, stout man on his foot; he had some kind Of whiskers; heard Mr. Marvin say to his lady that the whiskers were full, that they were false.” The lady was dressed in black, the folding doors were open two and a half Or three feet, and she “ got a peep at ‘them now and then.” During the 'marriage, the parties stood “sideways” to her. She did not hear the gentleman request the marriage should not ‘be published; but says, “ I heard the lady say, she did not want the marriage to be known; she said it; Mr. Marvin heard it ‘and made an answer back.” The witness also states! “I lét thé same :gentleman inwho was married, the next morning, when Mr. Marvin was at breakfast .(eight or nine O’clock), I didn’t pay much attention 'to his face; I didn’t ’pay nó attention, only he had whiskers, and white gloves on his hands.” At the inquest, Sarah recognized the claimant and her daughter as the ladies who were present at the nuptials; "she saw the corpse and testified: “ I could not say; I ‘thought it looked very like the man that was married; but I couldn’t say whether it was him or not;” “I said it looked like him, that is all I said.” * * “I told him (the Coroner) T could not say it was the same man, on account of the death; death disfiguré's people very much if I saw the man living I could give 'a better guess; but seeing the man dead, it 'was pretty difficulty to givé a guess.” * * “I sáw the daguerreotype looked like him, and that was all I saw; I didn’t say it " was the man, and I didn’t'say it wasn’t, nor I can’t.” * * “ I could not see whether it was him or not, only it looked like him.” Finally, when interrogated before me as to her beliéf of the identity, she answered, “I can’t say,” and refused to speak moré definitely.

7. There is a large mass of testimony relative to Dr. Burdell’s personal appearance. Rev. Mr. Marvin described the man he married as having a mustache, long and large whiskers about the lowér part- of the face, not heavy at the side, very black, hair dark, medium in abundance; whether the face was full or thin, not recollected; complexion not fair nor very dark; height, five feet eight or nine inches; weight, 165 or 110 pounds. He was “ slow of speech,” voice not musical, “ stooped considerably,” and “ walked something like a man of 60 or 65.” He says, “ I do not remember to have caught his eye at any time.” He was neither “ very cheerful ” nor “ enthusiastic” in the matter. Dr. Uhl said, the decedent had “ two different manners;” that in regard to personal business of a delicate nature he spoke slowly, and there would be long intervals between the sentences; and at other times his speech was rapid, quick, and sharp. With this exception, the whole body of evidence in the cause exhibits Dr. Burdell as quick of speech and animated in motion. I am inclined to think that in stature, or in carriage, there was some inclination, or stooping. The natural color of his beard was a light brown, mixed with gray; but, as he dyed his hair, the appearance varied. At the time of his decease, it had been recently dyed. I have no confidence in this mode of identification; it can rarely "be satisfactory, and certainly is not in this case. There may be general similarity in many details, and yet great difference in their association, in contour, and in expression. The combination and arrangement of the human features and lineaments are ordinarily so unique in each particular person, and the peculiarities of individual expression, tone of voice, gesture, and carriage, so marked and striking, that to a familiar acquaintance or friend there can be very slight chance of mistaking personal identity. Still, we constantly meet with general, as well as particular resemblances, among the millions of our race, which often deceive the casual observer, and which, where fraud is designed, may easily be made the basis of criminal personation, with the aid of art to help nature. It is obvious "that, in an effort to pass a counterfeit partner to a marriage contract, there would be an attempt to come as near the genuine as possible. Certainly all startling discrepancies would be avoided, and the closer the approximation to a similitude, the greater the prospect of success. It is consistent, therefore, with either side of the issue in this cause, that in the inventory which has heen made of the features and characteristics of the person of the decedent, and of the person married on the 28th of October, there should be some general resemblance. For example, as to height, it would have been folly to present a tall man in the place of the decedent. Then, again, it must not be overlooked, that peculiarities of the voice and manner, arrangement of the hair, and carriage of the person, may all be imitated, more or less closely. In these respects, a personal friend, having a fair opportunity for observation, could not, as a general thing, be deceived. Familar intercourse produces that kind of knowledge which acts instantaneously, by an immediate and single process of recognition. We do not, at every meeting with an acquaintance, begin to compare features, and reason on the question of identity, but we recognize the whole object as a living unity. Changes in personal appearance consequent upon sickness, arrangement or color of the hair, do not, unless the departure be great, diminish the power of recognition; and dress has very little influence. Where persons, however, are not familiar, these circumstantials are of consequence. If, therefore, the intercourse has been slight, it is important that the elements for comparison should be as nearly alike as possible, in order to secure recognition. The first difficulty in the present instance is, that Mr. Marvin was called to judge of the identity of a living being with a dead body. The decedent came to his end by a sudden and violent death. Dr. Uhl testifies, that at first the change was so great that, but for the circumstances, he would hardly have recognized the corpse. Dr. W. B. Boberts says, the whiskers were “ dyed blacker than ever,” and he “ should hardly have known him.” When the body was examined by Mr. Marvin, on Sunday, the appearance had become more natural, but not so much as on succeeding days. I do not observe, however, that Mi*. Marvin pointed out any other marks of resemblance at the second examination than were noted at the first view. At the best, the difference between life and death, the wound in the face, the change of posture and dress, the closed eyes, the rigid mouth—motion, gesture, and carriage gone—all tended to present different elements of comparison. Some of these differences applied to the daguerreotype likeness; and it is a matter of common observation, that even this mechanical process of portraiture is not uniform in its production of resemblance.

The powers of perception and accurate observation, and the memory of forms, vary largely. Mr. Marvin states, that he possesses no unusual faculty in this respect. Dr. Parmley testifies, he said to him, “he was not good at recognizing persons ;” “ that death changed the countenance so much, and he not being ready to recognize a person by sight, he did not know if he could have recognized a corpse, even if it had been the man he married.” The opportunities for observation in this case were slight. All that occurred at the three interviews might have taken place within thirty minutes, certainly within an hour. The interviews occurred in the space of twenty-four hours, and presented a proximate succession of visual impressions almost like a single observation, and not such a repetition, at distant intervals, as would call for an act of the memory, and an effort at recognition. There was a lapse of three months between the dates of comparison. Under all these difficulties, it would not have been easy for a person of ordinary observation to have pronounced with positiveness upon the identity of the two objects.

Let us see, however, what Mr. Marvin did and said, when first called to testify. He was taken to view the corpse, and was then requested to state whether that was the body of the man he had married. This was done twice, and under circumstances of such stalking responsibility as would naturally arouse the faculties and intensify their action, and lead him to probe his deepest recollection. There are various versions of what he said on these occasions; and a large part of the time of the court was occupied at the trial in the effort to exhibit his statements and conduct. In reports of conversations from different observers, variety is to be expected, the substance being presented through different minds and memories. Sometimes great and palpable errors .occur; but in the evidence on the point now reviewed, there is so much substantial harmony between the witnesses and Mr. Marvin himself, that I prefer to use his .own language, especially where the course ,and operation of his own mind are under examination, and the witness has laid it bare with a frankness and .candor deserving respect. On .the Sunday succeeding the decedent’s death, Mr. Marvin states, he did not recognize Mrs. Cunningham at all. .Shortly before he was examined in this court, he visited her at the Prison, and he says : “I went, and at the first look.of the woman, it flashed more upon my mind than ever .that she was the woman I had married.; or, in other words, she then resembled more the woman I .married, than she did when I saw her on that Sabbath; I am .perfectly .satisfied that she is .the woman I married on the 28th of October last.” At the first interview, there was an utter .and absolute failure to recognize; at the second, it flashed .more “ upon his mind than ever,” ¡she was the woman he married.; and finally, he is “perfectly satisfied of it.” A .process somewhat similar, except that at the outset partial resemblance was observed, took place in regard to the man. He says-: “ I swore before the .Coroner’s jury that ;there were strong points of resemblance between the dead man and the man I married; I won’t say ¡that I said strong points, but I, said points; .1 .think I mentioned more than one point; :I mentioned particularly.about .the .mou.th, and I may have mentioned, and I think I did, that I married a man about that height and weight; I don’t remember whether I stated anything .about the mouth more than fit bore some .resemblance ; X .don’t think I told in .what respect the resemblance was; .1 think there was some similarity about .the mouth.” * * *' “ I think I mentioned the beard and hair.” * * * “I think the .District Attorney, showing me the daguerreotype, .asked if I .recognized anything there .in the man .who came to be married,, or something like that.” Q.—“ Did you not answer, II think I do about the .mouth,; but there is so little resemblance, I should not like to swear definitely ?’ ” _A.—“ I think that is my reply to the word but after that, I do not remember saying the rest of the reply.” Q.—“ When you were previously asked, Is the body that of the man you married,’ did you answer, ‘ The man I married had larger whiskers,’ and was that all the answer you made in respect to the man?” A.—“ I presume I did so answer; I think I did, because the man I married did have larger whiskers—not thicker, but longer; I don’t remember whether that is all the answer I made to that question, but, so far as I now recollect, I think it was.” Q.—“ You were asked, Had he a mustache ?’ and you answered, ‘ I cannot say ?’ A.-—“ It was something like

that, a dubious expression; I think it was I cannot say.’ ” Q.—“Were you asked, Do you recognize either of these parties as the ones who came to your house to be married ?’ and did you not answer, The woman I cannot recognize at all; the man had larger whiskers; the deceased has no whiskers, except a goatee; the color of the hair on the face of the deceased and the man I married is the same ?’ ” A.—“ I think I did.” On his second examination before the Coroner, and after he had seen Mr. Eckel, Mr. Marvin says : “ I stated that the body up stairs resembled more the man I married than the man shown to me as Mr. Eckel.” Still further: “ I did not say I recognized the body, not in those words; do not think I told them I believed that to be the body of the man I married, for they asked me no question to lead to such a remark ?” How, nothing can be plainer than that Rev. Mr. Marvin was called as a witness at the inquest solely for the purpose of identifying the parties he married; and on the general question of recognition, he was morally bound to make as full and free a development as lay in his power. I have no doubt that he did. We must take him as answering according to his knowledge at the time. He justifies having given no positive opinion on that occasion, by saying: I did not deem myself justified in doing so, inasmuch as I did not hear the man speak, which is one important point in identifying an individual—the voice and the attitude, the position of the body when standing.” This is true; but these points are just as important now, as they were at the time of the inquest. Mr. Marvin also freely admits, that he has been theorizing upon this question of identification. When he first entered the dwelling No. 31 Bond street, the idea was “preached” into him that Mr. Eckel was the man; he “ was under that impression” before he saw the corpse, but he adds, “ my faith in that theory was mightily shaken when I went up and saw the dead body. That was one of the reasons, after I had seen the dead body, I was not willing to swear positively. I had not at that time got entirely free from that theory, and supposed, when I saw Eckel, I did not know but I might see the man I had married.” Again: “ I thought it possible I might see a man in whom there were more points of resemblance than in Dr. Burdell.” If this was possible in regard to a comparison with Mr. Eckel, is it not still possible in regard to other persons ? Who can say whether Mr. Marvin might not yet be confronted with a man “ in whom there are more points of resemblance than in Dr. Burdell,” and so be justified in taking another theory? On seeing Mr. Eckel, Mr. Marvin continued: “ My theory was all gone,” and “ I took the other theory, that Burdell was the man; I was as confident of it as of my existence.” Mr. Marvin states, also, that since the decedent’s death he has conversed with a number of persons who have described the personal characteristics, appearance, and manners of the deceased, and the description has invariably tallied with his own recollection. This admission of hearsay, and this theorizing, are very much in the way of a clear and unadulterated act of the memory. If the witness has been applying the facts to different theories, has been listening to descriptions, has allowed his mind to be impressed with the views of others, has been unwilling to give a definite answer about one man until he has seen another, and then expressed a conviction, founded largely upon his comparison between the two—in such a case, the court must be careful to discriminate between the fact and the theory. It appears, then, that at the Coroner’s inquest the witness, when asked if he recognized the body or the daguerreotype, did not say that he did, but stated that there was a resemblance about the mouth, the color of the beard and hair was the same, but the whiskers of the man were larger than those of the corpse. And again, after he had seen Mr. Eckel, and declared he was not the man, on the question of recognition being again put, he said, “ the body resembled more the man” than Mr. Eckel did,—which was just no resemblance at all. These were Mr. Marvin’s statements at the inquest; and I must do him the justice to say that, after a careful examination, I do not find them to vary from his testimony before me. The only difference between his position at that time and at this, lies in conclusions, not in facts. His evidence before me as to identity, is limited “ to some resemblance in the mouth,” the color of the hair and beard, the size and weight of the body; and, as to dissimilarity, the greater length of the whiskers. In regard to the mustache, at the inquest he could not say, but now he recollected it. I may add, that the resemblance about the mouth, relative to lineament or expression, could not be very distinctive, as the lower part of the face was mostly covered by the beard. In the absence, then, of an act of distinct recognition, after twice being placed on the stand, these are the points of resemblance upon which I am asked to pronounce the identification of a person so to be made out in a case of secret marriage and devolution of property as to declare it a legal conclusion. It is enough, in my judgment, that Mr. Marvin did not recognize the man, affirmatively, when he was invoked to test that very question. That was the whole object of his examination of the corpse; twice he was there; the daguerreotype was shown to him; he saw Mr. Eckel; twice he was placed on the stand, and he never spake to an act of recognition, but only to resemblance, in regard to which he reasoned, theorized, and compared. He did not find the same picture, but some similitude to it, no greater, in my opinion, than might he expected in an effort to simulate the person of the decedent; and if at this moment a person were produced who presented more points of resemblance to the man he married than Dr. Burdell, we might reasonably anticipate a change of his belief and conclusion.

8. There are several considerations touching the circumstances connected with this marriage, and other proofs adduced by the claimant, which may well be considered here.

(a.) The gentleman called on the clergyman three times— twice in the open day . the act was bold, but no bolder than the daring requisite to achieve a simulated marriage demanded. The first visit, if crime were designed, was necessary to make the arrangements and insure secrecy; for it is observable, that the injunction against publication was made and a satisfactory reply received at that time. The last interview grew out of the fact that the certificate was not prepared at the marriage.

(b.) It is urged, also, that an application would not have been proposed to Dr. Snodgrass, and that so intimate a friend of his, as Mr. Marvin, would not have been selected to perform the ceremony, had fraud been on foot., But Dr. Burdell at that time was not known to Dr. Snodgrass. Who can tell, had the latter been found home at Goshen by the claimant, whether a word would have been uttered touching a marriage ; and, finally, the only witness who could have testified to the particulars of the interview at Goshen, was pot examined. There is just enough in the circumstances to give a color of openness, and that is all. Augusta states that Dr. Burdell said, “ he should like mother to go to Goshen,” and it was understood the wedding should be at the house; and yet the decedent was not acquainted with Dr. Snodgrass, and not an effort was made to have the minister selected in his place perform the ceremony at the house.

(c.) Dr. Ware testified that he met Dr. Burdell with two ladies on the west side of Broadway, crossing to the north side of Bleecker street, on the evening of the 28th of October last, about eight o’clock, and the Doctor bowed to him; that he was returning from No. 80 Macdougal street, the house of a friend, where he had called in consequence of a letter he received from him that day, dated the 27th of October. On cross-examination, it appeared that he had been to the same place, at the same time of the day, on the same business, a great number of times before and after the receipt of the letter, and that he had not connected the letter with the occurrence in the street, until he found the document, a week previous to his examination, after a search made at the instance of a person interested for the claimant.

(d.) The claimant stated to Miss Van Mess, in September, when the marriage was spoken of, that the Doctor, herself, and Augusta were going to Europe in the spring. In November, she told Dr. W. B. Roberts that she and Augusta were going. There is no question but that the decedent himself had been talking for several years of making a voyage to Europe, and after his intimacy with the claimant, spoke of taking her and Augusta with him. During the last fall and winter, he intimated to various parties the intention of going the next summer, or in May or June, and inquired particularly concerning the expense and the routes of continental travel. On the 30th of October, he spoke to Mr. Smith of having “ ladies” accompanying him, and in January stated to Mrs. Dennison he would “ take a lady” with him; a gentleman always fared better “when travelling with a lady.” Mot a witness, however, has been produced showing any recent declaration of an intention to include the claimant in the expedition, except Dr. Uhl, who testifies to a conversation of that tenor on the 27th of October; but, as I have observed elsewhere, there is nothing sufficient to fix that date definitely. This proposed journey to Europe, therefore, does not tend to establish the marriage. The evidence only shows that a voyage, associated by Mrs. Cunningham and Augusta with the period for disclosing the alleged marriage, was talked of, but the truth of the fact would not prove the truth of the association.

(e.) The marriage was secret. The assurance of secrecy was obtained before the performance of the ceremony was ventured. On Mrs. Cunningham’s part, it was certainly preserved with the utmost exactness. Indeed, if it were a fraud, it was necessary that silence should be preserved. Secrecy is a badge of fraud, unless a fair and adequate motive be presented. Marriage is honorable; and where its duties are voluntarily assumed, by parties occupying an independent position, there must be some strong and controlling motive to induce a suppression of the truth. The motive presented by the claimant is, that the decedent had promised another party never to wed while she remained single, and was not prepared to disclose the marriage until he went abroad. I see nothing in the case to corroborate that view. If, as the claimant’s counsel argued, he was forced into this marriage, and if he was driven into it by reason of the suits by which he had been assailed, he might, perhaps, through fear of ridicule upon that ground, as well as his previously expressed views in regard to the sex, have been desirous that the affair should be kept private. On such a hypothesis, I am not prepared to say there was not a motive. But secrecy and publicity cannot exist together; if the motive was strong enough to induce an entire seclusion of the matter from his family and intimate friends, it is certainly very extraordinary that he should speak of it to mere acquaintances, as if it were a known thing. As a slight turn of the wrist may parry a deadly thrust, so a slight variation of words may give an entirely different direction to the purport and meaning of language. The subject of conversation may be remembered, but where the precise phraseology is material, the lapse of time, the infirmity of human memory, the influence of the imagination, the harmony or the inconsistency of the statement reported with the conduct of the party as otherwise indicated, are all to be weighed by the court in determining the probability of mistake. Mr. Wilson testified that he met Dr. Burdell in Broadway, the second Tuesday or Wednesday before his decease, and on inquiring “ How is Mrs. Cunningham, Mrs. Burdell that is to be?” received the reply, “He was sorry it was Mrs. Burdell.” The dislike expressed comports with the other evidence in the case, and the introduction of a small particle in harmony with it, an “ if,” would change the whole tenor of the phrase. Mr. Knowlton deposed to a conversation with the Doctor in December or January, in. reference to an exchange of property, when the decedent spoke of some “ little trouble in his family,” and said, “ he didn’t know whether his wife would be willing to sign the deed.” There was a difficulty at this time, arising from Mrs. Cunningham’s claim of a lease, and no doubt it was mentioned to Mr. Knowlton; but, with the evidence of Mr. Rich, his partner for years, that “ his recollection of words is sometimes indistinct and confused”—“ he is very apt to detail his inferences as part of the conversation”—there is fair room for question whether the word “ wife” was used, or the witness drew an inference to that effect from the drift of the conversation. Catharine Lamb, who had been in the service of the claimant at a previous period, for three years, testified, that some time in October, when Dr. Burdell was attending to her teeth, the claimant said, “ she was going to get married to Dr. Burdell,” and, to a question of the witness whether it was so, he answered, “ Yes, and you can come and live with me.” This witness thus asserts a free and easy disclosure of an intention to consummate a marriage, which was carefully concealed from Miss Helen Cunningham, and made known to Augusta under the threat of killing her if she divulged it. In this connection, I may note the declaration of the claimant, mentioned by Dr. E. A. Roberts, that she “would not marry such a man as Burdell”—“would not marry a man that loathed her.” An observation of that character is inconsistent even with a pretended marriage, and is not like to have been made subsequent to the wedding, though it may have occurred before.

(f.) Among the documents found in Mr. Eckel’s possession, and claimed by Mrs. Cunningham, was a writing in these words:

“ I, Harvey Burdell, of the city and county of New-York,

“ being duly sworn, deposes and says, that he has not up to “ this present day, October 18, 1856, made or executed any “ will or testament, disposing of his property at his death, or “ any portion of it. In case any will or testament should ever “ appear, previous to this date (October 18, 1856), the same I “ pronounce to be an unmitigated forgery.

“ Harvey Burdell.”

It is supposed that this paper, signed ten days before the alleged contract of marriage, was designed as an assurance to the intended wife, against a hostile will. But a will could not affect dower in real estate, and as to personalty, the wife’s rights could be defeated at any moment by a testamentary instrument. If a new will was made at this date, a previous will, whether false or genuine, would be inoperative. I can see no connection between this paper and a contemplated marriage, supposing that the parties understood the law on this subject. If they did not understand the law, it is impossible to reason safely on the design of the paper. It was found in Mr. Eckel’s secretary, but how it came to his possession is not known. He might have proved that, but he was not sworn; and, under all the circumstances of this case, I shall make no presumption of lawful possession because it was discovered in his custody. One fact stands out in bold relief on the face of the document; it refers in explicit terms to the possibility of death, and to the presentation of a forged will; it seems to originate from an apprehension that on his decease some fraudulent paper might appear, disposing of his property. Death and forgery are the two subjects of this extraordinary writing. ,

III. Although the evidence thus far in support of the allegation of the claimant is entirely insufficient to identify Dr. Burdell with this marriage, still, if on a full consideration of all the circumstances, it is probable he was married, if, instead of finding reason to question, there should be a concurrence of facts tending to establish the marriage, then the defects of the direct evidence might thus be supplied by the indirect and collateral proofs. It becomes necessary still further, therefore, to inquire whether the conduct, treatment, and declarations of the parties were concordant with the marital relation, or were repugnant to it, and whether previous intimacy and intercourse rendered a marriage probable.

1. Helen Cunningham states that her father died about three years ago, and that Dr. Burdell visited her mother in 1854, which must have been shortly after the decease of her first husband. Hannah Conlan testifies to circumstances occurring in November, 1855, and statements in reference thereto, by the claimant, in July 1856, which show an early intimacy. There is no question that up to some time in the summer of 1856, these harmonious relations had not been disturbed, and that the decedent spoke of the claimant invariably in the highest terms. He expressed the belief that she was rich, praised her and her family, her capacity and management. He was with her at Saratoga over two weeks, in August, 1855; he introduced her to his friends, he accompanied her to parties, walked arm in arm in the streets, and finally, not only took her into his house, but on the 1st of May, 1856, leased her the premises. His whole conduct showed confidence and attention. Miss Van Ness says, she knew of their engagement, and it was understood by both parties that she should be the bridesmaid. She describes their intercourse as invariably tender and affectionate, excepting some “ unpleasantness” mentioned by Mrs. Cunningham shortly after the 1st of September; and then within two weeks she requested her to witness a secret marriage, “ said he had come to his senses, and they were going to be married privately, and were going in the spring to Europe.” Dr. W. B. Roberts, who was a frequent visitor at the house, observed “nothing but kindness” in the mutual deportment of the parties. The claimant stated to Mrs. Denison in the summer, “ that they were “ engaged,” but asked her “ to keep it a secret.” In September, she told officer Moore she was “ his wife;” and officer Little, “ that she was his wife by every tie—that he had wronged her.” In September or October, she spoke to the Rev. Dr. Beecher of the. engagement, hut said, her children were opposed to it. In one count of the complaint for breach of promise, the date of the alleged promise is laid in February, 1865, the agreed time for consummation “ the summer of 1856,” and the breach “ in or about the month of July, 1856.” In another count, the time for consummation is, “ when he should be thereunto afterwards requested,” and a request is averred September 15, 1856. This complaint was verified under oath by the claimant. Whether the differences between her and the decedent arose out of the charge of stealing he preferred against her, or from jealousy on her part, or from both these causes, there can be no doubt at all of the existence of a serious difficulty, and that it occurred in the summer of 1856. Nor is there any reason to suppose the parties were ever restored to their original relations. They went together to Saratoga the 26th of July, and this looks like a renewal of intimacy; hut he remained there only three days, and the next we know is, the preparation of the papers in the breach of promise suit, and the violent outbreak in September, in regard to abstracting a note from his safe. Prior to July, their mutual intercourse was in harmony with a project of marriage; in that month the claimant has declared under oath that a breach of promise took place; and thenceforth, up to the time of his decease, the general character of their relations was marked by hostility. He was not free in his denunciations to Hrs. Cunningham’s friends, hut with his own, there was no measure to his invective. There is no proof of vacillation. During their intimacy, he spoke of her with respect; during their warfare, with every token of resentment. There was a strongly marked general current, first in one direction, and then in the other, with little, if any, fluctuation. I do not mean that they were in constant altercation, or that appearances were not measurably preserved when others were present, or when he was conversing with her friends. The claimant was determined to remain at 31 Bond street, and no doubt she had hopes of conciliating the decedent. He was determined she should not remain, and no doubt desired to effect his purpose peaceably. Some of her money was in his hands, which he was occasionally called to disburse ; by the terms of the lease she had charge of his rooms, and their occupation of the same house brought them frequently in company; so that, altogether, even after a hostile feeling was aroused, it would not be demonstrated, save on a collision of interests or plans. Such collisions took place in September, October, December, and January. At the beginning of December there was a quarrel, and the decedent, seizing a gun, drove her out of the room. About the same time, Dr. Wilson testifies he heard her say, “ that Dr. Burdell would learn to behave himself before she vacated his house.”

2. The difficulty arising out of the accusation in regard to stealing notes from his safe, Ashton says, originated in June or July. The claimant stated to Callahan, the Doctor “was under promise of marriage, and got up this note to get her out of the house, so the promise would be broken off.” That marked her appreciation of his wishes, and the bearing of the accusation upon the prospect of matrimony. The Doctor made the charge in the presence of Mr. Smith in September, he asserted it October 15 to Mr. Crombie, the last of the same month to Mrs. Wilson, and as late as January 26 to Mrs. Crane. Whether true or false, the allegation was made; and I think he believed it to be true. June 28 he had the safe-lock altered, in consequence of having lost one of the keys; and that key was discovered, stuffed away in a bag in the attic, at the time of the inquest. There can be no question that Mrs. Cunningham had given the decedent a note for $612.30 for the Burdell judgment,'which was assigned to her name in December, 1855. That note disappeared. On the 20th September, as appears from Mr. Spicer’s affidavit annexed to the complaint in the slander suit, matters came to such a pass that the police were called in. The decedent charged Mrs. Cunningham openly with having taken the key of the safe from his pocket while he was asleep on the bed, and abstracted the paper. She denied it. Davis states she said, “ he had ruined her and her family“ she would have his heart’s bloodand the sworn complaint in the slander suit asserts, that the Doctor assailed her at that time with the vilest abuse and epithets. Subsequently to this, Mary Donahue says, that during the Doctor’s absence she saw Mrs. Cunningham and Augusta examining papers at the safe. She states, that there were two doors open, while the safe has but one; and this error counsel urged as detracting from her accuracy. Two keys were furnished for the new lock of the safe put on in June : one was found in the decedent’s pocket-book; what has become of the other does not appear.

3. I have been surprised, on coming to examine the papers, to discover that the suit for a breach of promise of marriage was originated in September. The summons is dated September 16, and the complaint was verified the same day. This was before the police were called in, Mr. Spicer’s affidavit showing the date of that to have been on the 20th September. Some time must have been occupied in preparing these papers. So it is apparent there was a design to bring the action, before the middle of September. The summons in the slander suit is dated October 10, and the orders of arrest in both cases were granted in October.

II. The decedent was arrested October 15. On the same day he took out a subpoena for Mrs. Cunningham to appear before Justice Flandreau, returnable on the 16th. The unexecuted release found in Mr. Eckel’s possession is dated October 18, and the discharges were dated October 22; so that the parties probably came almost immediately to a settlement. The decedent said the suits were brought “ to extort money,” but Mrs. Cunningham told Mr. Frazer she would not settle “ unless it was in some honorable manner.” No money was paid. The decedent declared to the Deputy Sheriff, in the presence of the claimant’s counsel, the day the suits were discharged, “ they were glad to let him goand in December to Mrs. Williams, that “ he was going to take her up for stealing notes and other things, and she was very glad to make a settlement.” The terms of the adjustment are thus stated in writing:

“ In consideration of settling the two suits now pending between Mrs. E. A. Cunningham, I agree as follows :

“1. I agree to extend to Mrs. E. A. Cunningham and family my friendship through life.

“ 2. I agree never to do or act in any manner to the disadvantage of Mrs. E. A. Cunningham.

“ 3. In case I remain and occupy the house 31 Bond street as I now do, I will rent to Mrs. Cunningham the suits of rooms she now occupies, third floor, attic, cmd basement, at the rate of $800 a year. “Haevey Buedell.”

The parts of the paper underscored have been crossed with a pen.

There are some remarkable stipulations in this agreement. I only notice, at present, that the settlement being in writing, it must be taken as comprising all the terms of compromise, and that the guarantee of friendship, the assurance against hostile acts, and the new letting of the premises, are not conditions looking towards matrimony, but directly away from it.

4. The letters of the decedent to Miss Hubbard contain statements showing the progress of the affair between the parties. On the 10th of October, he writes: “ Mrs. Cunningham is about to take some steps to injure me, I think;” on the 15th, “The trouble I expected with Mrs. Cunningham may not take place;” on the 1st of November, four days after the alleged marriage, “I think that I should not have had any trouble with Mrs. Cunningham, if it had not been for Spicer, who joined her in her attempt to injure me; but all trouble is now at an end, I think; she is a designing, scheming, and artful woman; all her designs were to get me to marry her; but* * * [she] has failed.” November 13: “ There is no trouble now between me and Mrs. Cunningham ; I think Mrs. C. will not make any more disturbance, and that she will be quiet, and leave 31 Bond street as soon as she can with a good grace.” “ I shall certainly get rid of Mrs. Cunningham by spring; and I may get rid of her now very soon. * * * I assure you, as soon as I can get her out of the house I shall.”

5. After the alleged marriage, the parties did not cohabit together. The only evidence tending to show cohabitation is, that of Augusta and Helen. There is something strange and singular in the statements of these two young ladies in regard to the room occupied by their mother. A fact of that kind is ordinarily one well known in the family. Helen says, that her mother slept in the small bedroom, second story, before October 28, and continued there until early in January ; and yet, at another place, her words are, “ I did not know that the Doctor and mother occupied the same room, but I supposed so.” According to her account, the third story front room was not used, except as a family sitting-room, until she was taken sick in January. Augusta, on the other hand, states that, “ most of the time,” from the 1st of May till 28th of October, her mother slept in the third story back room, or fourth story front room, with the exception of a few nights before the marriage, when she slept in the small room, second story, and after the marriage occupied the back room, second story, with the Doctor, until the last of December; that she knocked at the door almost every morning, and her mother always answered her. During this entire period, it is to be observed, that Helen supposed her mother cohabited with the decedent, though the marriage had been kept strictly concealed from her; and a portion of the same time the cohabitation was continued while Mrs. Snodgrass was visiting Mrs. Cunningham. Mary Murphy, who was there two months prior to the 10th of November, saw the wardrobe bed in the small room, second story, down only once. She made all the beds ; supposed that only one person slept in Dr. Burdell’s bed; that Mrs. Cunningham had the front attic, and says, “ I never knew of Mrs. Cunningham’s sleeping in Dr. Burdell’s room.” Hannah stated, that she always supposed that Mrs. Cunningham slept in the third story, front room, after Mr. Thayer left in the fall. She went there at night for orders for breakfast, and saw her there in her night-clothes. Mary Donahue, whose service commenced 26th November, and who made the beds, never observed the wardrobe bed down in the small bedroom but once, and then she carried the feather-bed to the third story, front room, two weeks before Christmas. She says she “ always considered Mrs. Cunningham slept in the third story front room knocked there to arouse her for breakfast in the morning, and carried water, and adjusted the fire at night. She judged from appearances that only one person slept in Dr. Burdell’s bed, two in Mrs. Cunningham’s, and, frequently, no one in Mr. Eckel’s. She saw the key in the door communicating between Mr. Eckel’s and Mrs. Cunningham’s rooms once, and at other times placed between the mattresses on Mrs. Cunningham’s bed. The young ladies slept in the attic. She heard them go to their room; knocked at their door in the morning; Helen was generally the first up in the morning; the witness stopped at Mrs. Cunningham’s room at bed-time, and Mr. Eckel was often there in the evening.

6. Emily Sallenbach testified, that Mrs. Cunningham and Augusta called at her mother’s rooms, 573 Broadway, she believed the 28th of October, about seven o’clock, stating that they came to wait for a gentleman. The gas was not yet lighted. After fifteen or twenty minutes, a gentleman called, and the parties bid each other good evening. Mrs. Cunningham exhibited some papers to this person, and they examined them together. After he came, Augusta played on the piano, and the witness was sent out of the room for a glass of water. She saw no gloves. This was the only time the ladies were ever there in company with a gentleman. At the Coroner’s inquest, she picked out Mr. Eckel from a number of persons, and identified him as the man. This witness is in direct conflict with Miss Augusta Cunningham as to the person present, and some of the circumstances which occurred at the interview. There is no satisfactory determination of the precise date when the transaction took place, so as to identify it with the evening of the wedding; but the- identification of Mr. Eckel, and the examination of the papers, connected with the discovery in Mr. Eckel’s secretary of documents belonging to Mrs. Cunningham, and bearing on this case, indicate confidential relations. Mrs. Wilson and Mrs. Williams state, that the decedent told them in December, the claimant “ had a lover in the house.” Dr. Allen T. Smith testifies, that on the 27th or 28th of January, the decedent spoke to him “ about Mrs. Cunningham and Eckel both occupying one room.” Whether he was justified by any facts within his knowledge in making this assertion, or whether it was untrue, it seems probable, from the evidence of Dr. Parmley and Dr. Main as to the appearance of a male person in the third story front room, from the two visits made by the parties in January to Cristadoro’s to select a wig, and from other circumstances in the case, that a .degree of familiar intimacy existed, much beyond ordinary acquaintance. The presumption thus arising was not removed by Mr. Eckel; for, though present some portion of the trial, he was not called to testify.

7. I have not overlooked the suggestion, that the decedent was personated at the wedding by Mr. Eckel; nor the evidence of Dr. Parmley in reference to the transformation in the appearance of a person-he saw in the third story front room, at a date which he thought was the 28th of October; nor the testimony which was adduced to show, that between five and six o’clock of that day, Dr. Burdell was present at the delivery of Mr. Eckel’s bookcase; nor the declarations of ill-will, on the part of Mr. Eckel, toward the decedent, stated to have been made on the 26th and 27th of January, in the presence of the claimant; nor the testimony of Mr. Douglas, that he was in company with Mr. Eckel the evening of October 28. It is not necessary to criticize this class of proofs. The fact that there is no satisfactory evidence pointing out the person who simulated the decedent at the marriage ceremony is not important, provided simulation be proved. If the deed was done, it is not necessary to point out the instrument.

8. The character, uniformity, and continuity of the decedent’s declarations, after their harmony was disturbed, and which bear upon the probability of his being the husband of the claimant, may thus be indicated:

(a.) He considered himself watched, and stated so to Mrs. Crane, Mrs. Denison, Mrs. Williams, Mrs. Stansbury, and the Rev. Mr. Cox. Callahan, Ashton, and Hannah, show that he was watched, and that they were set to listen.

(b.) He frequently spoke of the claimant in terms of contumely and apprehension. Dr. Roberts testified that, when conversing in October about the suits, he denied any intention to injure the claimant, and said he knew of nothing wrong on her part; but that was an exception to his usual course. The articles of agreement settling the suits look friendly, and guarantee friendship; but still their reduction to writing shows there was no confidence. What he thought is apparent from other sources. He said to Hector Moore, September 20: “ he did not know what he was going to do with her—that she acted as if she was determined to ruin him.” In the presence of Mr. Crombie, and Mr. Thayer her counsel, October 23, when the suits were discontinued, he charged her with infamous conduct, in terms I need not repeat. To Mrs. Wilson, the last of October, he described her as a very “ artful,” “ dangerous woman,” “ always planning.” She told him “ she had never been thwarted in her life; whatever plans she attempted, she generally carried through.” To Mrs. Williams, in December, he said she was “ a perfect fiend,” and “ would as soon dirk a man in the street as no the was “ afraid of her,”—she was “ plotting.” To Mr. Olney and the Rev. Mr. Cox, in December and January, he spoke of her as “that woman,”—“that woman down stairsand on the 26th of January, he characterized her to Mrs. Crane as a “ very artful woman, who would outwit the devil.”

(c.) He was generally uniform in his declarations against marriage.

Dr.. Walter B. Roberts states, he told him “he never intended to marry“ he was preaching that to every one he met“ a regular habit.” When arrested in October, he declared to Mr. Frazer, “ he never had promised her; did not wish to get married;” to Clarence Frazer, “ he hoped his hands would be withered if he ever married” her; to Crombie, the Deputy Sheriff, October 23, “ he never would marry any woman;” to Mrs. Wilson, in October, “ he never would marry her, and he had told her so;” to Hrs. Williams, in December, “ she had given up all idea of getting him;” to Hannah Conlan, on New-year’s day, he disavowed matrimonial intentions, in the very presence of the claimant; to the Rev. Hr. Cox, on the last of January, “ he never had been married, and never meant to be marriedto Mrs. Benjamin, January 25, “ he never was married, and never should get married and to Mrs. Crane, January 26, “ he never had been married,” and “ he was further from it than ever.”

(d.) He was violent and denunciatory in his language, and emphatic in his injunctions, that Hrs. Stansbury, with whom he was negotiating a lease, should never permit her to return to the house. “ She is determined,” he said, “ I shall marry her, and I am determined I won’t marry her“ he was continually watched by her,” “ and did not feel safe.”

(e.) He was determined to compel her to leave the premises.

He said in June to Mrs. Wilson, “ he was willing to take the house off her hands; in September, to Hector Moore, “ he wanted to get her outin October, to Mr. Frazer, after the suits were settled, “ they were going to leave 31 Bond street the 1st of Hayin the same month to Clarence Frazer, “ he would set fire to the house if she did not leave after Hay the same month, he urged Mrs. Wilson to take the house, “ he would get Mrs. Cunningham to leave, even if he had to hire her.” He expressed the same wish to Mrs. Williams, adding, that “ he wanted to get Mrs. Cunningham out of the house, and he meant to do so, if he had to pay her for going.” He spoke to the Rev. Mr. Cox, within two weeks of his death, of the contemplated change, and the proposed letting to Mrs. Stansbury. Hannah Conlan states, that in the evening of January 24, he said, “ How am I to get rid of these devils ? I must get them out of the house some way and Mary Donahue, that he exclaimed, when he came down stairs in the afternoon, “ My God! what am I going to do with these people ?—they will have my life at the last!” To Mrs. Crane, January 26, he said, “ Thank Heaven, I will be rid of them all on the 1st of Mayand to Allen T. Smith, January 27 or 28, “he was determined to have her out of the house the 1st of May.”

7. These are his declarations. Did his acts correspond? Mrs. Stansbury’s narrative on this point is clear, distinct, and forcible. She had known the decedent for twenty years, and called on him for professional attention the latter part of November. In the course of conversation, she inquired if he knew of any one who had a house to dispose of as he disposed of his ; and he replied, that he intended to let his house in the spring, as he did not “like the parties altogether.” The subject was renewed about the middle of December; he then was more free; stated that Mrs. Cunningham was “ a very bad woman, and he wished to get her out; but she had the house until the 1st of May, and therefore she would have to remain in until then;” “ if she did not go out then by fair means, he would put her out by force;” that “ when he was in the house she continually threw herself in his way, and when he was out, he was watched.” At this time the parties came to an understanding, that Mrs. Stansbury should have the premises for one . year from the ensuing May, at §800 per annum. The 12th of January, Mrs. Stansbury called again; he told her he had informed Mrs. Cunningham that he had let the premises, and that she “ claimed to have a lease of the house for the next year,” and would not go out of it. This brings me to the consideration of the lease, dated January 24, found in the decedent’s safe after his decease. The legal effect of that paper is to release all causes of action, and it contains also an agreement to surrender the premises, No. 31 Bond street, the first day of May. The third clause of the agreement, on the settlement of the suits, originally was written in this way: “In ease I remain and occupy the house No. 31 Bond street, as I now do, I will rent to Mrs. Cunningham the suits of rooms she now occupies third floor, attic, and basement —at the rate of $800 a year.” As first drawn, the agreement was conditional on the decedent’s continuing to occupy the premises. The words underscored were stricken out by a pen, and then the contract was absolute. On the 12th of January, the Doctor told Mrs. Stansbury, that Mrs. Cunningham had set up this claim. Again, when the suits were settled, no release of the causes of action was signed. A general release, drawn by the decedent, dated October 18, 1856, was found unsigned among Mrs. Cunningham’s papers. Thus matters stood when Mr. Frazer appears to have met Mr. Thayer, and learned from him that the suits were not “settled,” but “discontinued.” This he communicated to the decedent, Saturday, January 24, about 4 P.M., who said “ very little,” and “ turned immediately away.”

Dr. E. A. L. Roberts testifies, that about the beginning of December, the claimant told him, “ she was foolish for discontinuing the suits she had been to her counsel again, but “ he would not have anything to do with it.” Here, then, were these two outstanding claims brought to the decedent’s notice —the lease and the causes of action in the suits. No doubt, as he turned away from Mr. Frazer, he went immediately home. On that day there was a disturbance in the house: Hannah says, a cry of “ murder!” The Doctor came down and went out, as was supposed, for the police; but at Helen’s intercession, on his return to the door, went up stairs. Mary Donahue testifies that she said, “ O Doctor, for God’s sake come in, and come up stairs, and I’ll get my mother to give you up those papers!” Hannah says, Mrs. Cunningham stated this difficulty to be “ about signing a paper, but she never would.” Dr. Burdell showed the release, signed, to Mr. Frazer the next morning, January 25, stating, that he had obtained it from the claimant the night before; and also, the same day to Miss Hubbard, saying that there had been trouble; “Helen told him to go and get his dinner, and her mother would sign it that night.” The document was next exhibited to Dr. Allen T. Smith, on Tuesday or Wednesday, January 27 or 28, in connection with the statement that “ it was a general release and an agreement to leave the house the 1st of May.” Finally, January, 30, about 2£ or 3 o’clock, the decedent told Mrs. Stansbury, “ it was all settled with Mrs. Cunningham”—“ there would be no trouble.” At that time he accompanied Mrs. Stansbury through the house, and when the examination of the premises had been made, read over the agreement to let, and stated that Mr. Stansbury was to call the next morning to sign the document. The morning came, and he was found dead in his room, and Mrs. Cunningham claimed to be his widow.

It becomes my duty to pronounce against this allegation of marriage. The reasons leading to this conclusion may be summarily stated thus :

1. The marriage was clandestine—and there is no presumption in favor of a secret marriage, not preceded nor followed by cohabitation.

2. The clergyman selected was unknown to the parties.

3. The place appointed was distant from the decedent’s residence.

4. The only witness chosen to be present was one of the daughters of the claimant.

5. The witness is contradicted by her own statements, made under oath at different times, and by other evidence.

6. There is no sufficient identification of the decedent—no act of recognition on the part of the clergyman—but only resemblance indicated.

7. The certificate of the marriage affords no evidence of identification.

8. The certificate is incorrect as to the name of the decedent, and evinces ignorance or error as to the place of his nativity.

9. There were suspicions circumstances attending the transaction.

10. The marriage was not confided by the claimant to any member of her family, save one.

11. There.was no private or public acknowledgment of cohabitation; but the alleged parties lived as single persons.

12. On the part of the claimant there were confidential relations with .another person, in respect to whom the decedent charged improper intimacy.

13. The terms of the settlement of the suits alleged to have led to the marriage are in writing, and exclude the assertion of other terms.

14. The marriage took place after the settlement had been concluded and carried out.

15. The claimant executed written instruments to the decedent in her own name after the marriage. She assigned a judgment; he drew a check to her order, she endorsed it; and he swore to an affidavit: in all which she was described by her own name.

16. At the settlement of the suits she stipulated for a new lease of the house.

17. Shortly before the decedent’s death she released all causes of action, and abandoned her agreement for a lease.

18. He spoke of her with contumely and reproach, and made repeated declarations against marriage.

19. He was determined to compel her to leave the premises, and a new lease to another party was about to be executed.

20. The marriage was first announced after his death.

This is not a case where the proofs have left the mind of the court in doubt. Not only are they insufficient to affirm the marriage, but in my view they utterly negative and overturn it. There is not a solitary sign of that relation, but at every point facts stand out wholly inconsistent with a matrimonial union, from the 23d of October until the decedent was carried to his grave ; speech, writing, and actions which express more than either, constantly proclaim that the parties were single. We find the decedent and the claimant at one time upon terms of mutual kindness, attention, and daily intercourse. This concord was unbroken until, on the one side, jealousy, and on the other suspicions of treachery and improper dealing, gave it a blow from which it never recovered. From that period until the decease of Dr. Burdell, I can discover nothing but a mutual struggle,—on the part of the man to eject the woman from the house, and relieve himself from her presence and influence,—and on the part of the woman an unceasing and persistent determination not to be driven from the strong position she occupied in the very centre of his house. He charges her with stealing—she assails him with actions for slander and breach of promise of marriage ; and then the combatants draw off, and the suits are discontinued. At this point the claimant insists that a marriage was consummated—not through affection, for the absence of that is apparent—but through fear, by intimidation —in fact, by coercion, the decedent having presented to him two alternatives—to marry his assailant, or to face her attack and defend the suits. But it must be remembered, that the suits, if continued, would have been likely to affect the plaintiff’s character as well as the defendant’s; and the latter might, therefore, well doubt whether they would ever be pressed, even if he remain passive. The application of the Doctor for a subpoena to Mrs. Cunningham, on a charge of stealing, shows that he had no intention of submitting quietly. Finally, all proceedings are abandoned on both sides, the terms of the compromise are committed to writing, and the settlement was closed the 23d day of October, five days before the alleged nuptials. Such an important element in the arrangement as a compulsory marriage, would hardly have been left by a suspicious and vigilant party to be executed subsequently. The stipulations of settlement between antagonists are ordinarily consummated on both sides simultaneously. Indeed, if a marriage were understood as a part of this adjustment, there would have been no formal adjustment at all; the marriage itself, uniting the parties together, would have instantaneously given the wife a home in her husband’s house without a rent charge; would, by its necessary effect, have blotted out all causes of action, and rendered useless and futile all agreements and all releases. The whole process of determining these controversies, then, raises the strongest presumption against even a voluntary marriage intended shortly to be solemnized, and is utterly repugnant to a compulsory marriage, insisted upon as one of the terms of the settlement, .let us look a moment at some of the facts. The decedent had, in the summer, ceased to take his meals in the house. Did he return after the alleged marriage ? He had spoken of Mrs. Cunningham as an artful and dangerous woman. Did he desist from such representations to his confidential friends after the alleged marriage? Was it his wife he thus characterized and abused in the most bitter and venomous terms—a woman whom he had taken to his bed, and whom he expected to recognize in a few months before the world, by his name, and as the partner of his station and wealth ? Was it a proposed wife who took a new lease of the house in the agreement of October 23? Was it a proposed wife whom he desired to sign the unexecuted release of all causes of action the 18th of October ? Was it his wife with whom he was dealing on the 14th of November, when he drew his check to the order of “ E. A. Cunningham,” and she endorsed it in that name, and when, by the same name, and, on the same day, she assigned to him the Burdell judgment, and on the 19th of November, appeared before a Commissioner and acknowledged the instrument, Mr. Thayer, the counsel, swearing to her identity as “ Emma A. Cunningham?” Was it his wife the decedent described in his affidavit, sworn the 24th day of November, and found in Mr. Eckel’s possession, as “Mrs. E. A. Cunningham?” Was it his wife who he feared would renew the suits in January, and who signed the release of January 24, in the name “ E. A. Cunningham ?” Again, he was about letting, for the ensuing year, the portion of No. 31 Bond street, not occupied by himself, reserving some apartments for his own use. As early as June he had begun the struggle to be free. Step by step may be traced the progress of his efforts to remove the claimant; and finally, when, after a scene of violence on Saturday, January 24, he procured a written agreement to surrender the premises on the first of Hay, he proceeded to consummate the long pending negotiation with Hrs. Stansbury; and the afternoon of Friday, 30th, announced the papers ready for signature the next day. These facts are not to be mistaken—his purpose was understood by her, declared by him. Were these two persons standing at this point of antagonism, husband and wife? Were they mutually conscious of a lawful marriage ? Here was a woman of energy and determination, supposed to be equal to the task of forcing him into compulsory wedlock—alleged to be then holding in her hands the fruits of that bold project, invested with a right of dower in his estate, a title to abide in his house, and receive maintenance and support—able at any moment to proclaim her rights to the public and enforce them before tribunals of justice, and her alleged husband was on the eve of signing an instrument which in a few months would eject her and her family, and introduce others in their stead. That little paper, signed by Mr. Marvin,—the certificate of marriage,—if it certified the truth, was a potent argument against the contemplated deed; but not a sound was heard, and the name of wife never passed her lips, until death arrested the consummation of the act, and she declared herself the widow of the deceased. Under such startling and extraordinary circumstances, it is impossible to believe that these parties thus, for the space of three months, dealing, acting with, and treating each other—both holding themselves out to the world as single, and each toward the other behaving in a manner wholly inconsistent with the marital relation—were man and wife? We must treat such a case, in the conclusions we draw, according to the ordinary course of human nature. Conduct improbable, unreasonable, absurd, and inexplicable, in view of one relation, but natural, reasonable, probable, and explicable, in view of another relation, possesses an overwhelming power in determining the relation, and deciding between truth and falsehood. A series of circumstances, such as in Providence has been developed in this cause, showing at every step and link a connected and harmonious chain of evidence against this pretended marriage, cannot be fabricated; it is the result of a natural process; it strikes the mind with irresistible force, and leads to entire satisfaction and conviction that the decedent was unmarried at the time he came to his unhappy death.

Let an order be entered declaring that Emma Augusta Cunningham is not the widow of the deceased, and directing that letters of administration be issued to the decedent’s next of Mn, on giving the proper security.