The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-08-25
TEE BURDELL Estate.
THE MARRIAGE OF MRS, CUNNINGHAM,
IMPORTANT DECISION OF THE SURROGATE.
Mrs Cunningham Declared not to be the
Widow of Dr. Burdell,

&c &C.. "a,
The Surrogate entered biz Office at IL o'clock yesterday
and made the following decision upon the application OF
Mrs Emma augusta Cunning ham, claiming widow
Of the late Dr. Harvey Barae for letters Of
upon his estate
IN the Mater # the Estate Of Harvcs Burd, deceased
BY the law OF ihis State marriage Is treated merely
OWL CONTRACT not requiring legal forms religious solemn
ties any special mode OF proof obvo1 no 1ever,
tn the security OF property, domestic happiness and the
oroer and well being OF society deeply involve in the
erection or all reasonable barriers against the preparation
or fraud In reference Institution which lies at the very
bash OF private and public welfare. The policy OF the
law Ia opposed TO concealmeni OF the marriage
contract. Publicity Affords security. Upon this
application for letters OF administration there
is an effort to esia 5lish q secret marriage There
was no open cohabitshon or acknowledgment no
token OF the relationship to external appearance
the parties lived single PERSONS and the alleged
tract first announced when the lips the deoetent
we're sealed by death In such case taere is pre-
sumption in favor OF marriage; the presumption against
st. There is ground for invoking the charities OF the
law but the concealment excltes suspicion and calls
rigid scrutiny will enter into the honorable
estate OF marriage In privacy, excluding carefully the
usual public, social and domestic evidences OF nupa
Contract that the wife Is not known until she
widow the cLlm should be Viewed with Jealousy and strict
proof be demanded.
Al the trial allowed the widest scope of inquiry the
law pems in order that for elcitng 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
review and analysis OF the material facts proracted and
laborous but the grave and solemn duty TO which
ca led The importance OF the question al issue In its pr
waite and social bearings imperavely required that
pains taking should be spared In exhibiting the grounds OF
the vicon TO which had arrived Ga the evening OF
October IS 1885, the Rev Urah Marvne united .wo per-
in the bonds OF wedlock at his residence No 1872
Greenwich street, in this city. one Of the parties
En Augusta Cunningham the witness her daugn.
ter Margaret Augusta and whether the ohsr party
DR. Harvey Brrie IL the question submitted for ny de
csou This murt be determined upon the evidence before
AFTER dscardirg that which unworthy of faith aud
credit The point presented for solution is pure question
OF fact-bas the claimant established ceremonial
riRse with the decedtnt?
shall first inquire where the decedent was about the
claimant has shown to my entire satisfaction tbs. Fri
day, the 24h Tuesday the 2sh aud Friday, the 3ist of
each Of those days the sessions the Board OF
Directors OF the Arzsps' Bank, probably from OK 10
Sis, o. ooser And ,erues e 70 bs homs ~. 'ns
Monday, Novem Der Mr.. Snyder states that at Sara
sos. he sad he came from the West If he lad
remark might hsve been true, but it, exact purport
misuudersood. The contestants allege that IL sub
stans true and that the deceden ., the village Of
Herkmer saturday Sun day and Monday, 25th, 18th
and 27ih OF Oct Der The claimant, the other hand
adeuced proof to show he was then In the city Of New
YORK
l. appears from the books Of the Lafrse House ths,
Dr. Bcrde paid for bis board on two occas when 10
tending 70 leave for few days; deduction made
FOR absence, and he we're al Herkimer a. the time In
question, hh onl was running on at the hotel Nelson
BARLOW depoeed that DIP. W b Roberts performed some
dentistry for him Sunday October g. and Sunday October
20 that on me nr occasion another person VAS present
on the second occasion he was introduced to Or. Burde
fheee oset determined BY entries In Dr. Rooerts book
DR. Roberts to the 9Th OF October says che docs
know Sho VA present them; he thinks Dr. Burdeb was
In onoe when he attending 10 Mr. BArloW's teeth,
4tds, the only way had Of determining which of
sundays was, was the conversation about Mr.
sr's esigulrg which had taken place two or three
,s before Nov, Dr Burdel. according to Mr. Barlow,
officers and wshed him and Roberts N lake sto * In the
institution 80 far the Interview might have happened
the 5h OF ober Dor does he remove positively TO the
2Sh when he says, be spoke nj Mr Frazer well
recolec and bis resignation as Vie President" The
general conversation about the bank gives preference
dale another and everything turns Dot on the
main subject but upon the certainty o. uncertainty OF
"the rec naion having been mentioned at the time In
questions collateral or incidental which might easily DO
The subec OF mistake DE- Uhl states thai 40 net
the deccdent in Bind street in october ne dsguses ,he
time a. Monday the 21th, ana colocstss the interview
With the crcu instance that be vas then biz way 70 at
Tend patent OF Brooklyn but he produced no memoran
dunn entry 10 indicate the date Of that visit The
currence CT i've events on the sane day proves nothing
the time, uness the date Of one OF them be known
Here the date Of neither Is determrabe except by the
memory o. the wiinos and thus We are reduced 70 his
bare naked declaration 10 June 1851 that be saw Dr. Bur
dell In Bond street. the 9th Of ost)bsr, 1885, seven
months before Mr. Douglas. te..hes tbsl be sitting
the paro OF The decedents residence converting with Mr.
Ecse' The Afternoon q Sunday October 70, when Dr Burceu
in, inquired ~ person had called To- him, ad
orer,et IRE Cunningham who ross and the two ie he
room together The witness the date from the
cums,hnce that be called 70 Mr. Ezekiel 10 respect 20
bookcase, for the purchase OF which ne was negoutpg
IL manifest however from Mr.. Smiths testimony, that
the pegoteNon pending several weeks, aud should
luoge from the Intimacy between Mr. Eckcl and NJ.
Dougias. and from other facts that the latter not
infreq cot v,e' al the house SUM- there degree OF
posveDess 10 hs testimony which canno, be OF, Rocked
and IN TIE bookca,e vas yered on the 2sth OF Cco
ber be be taken very definitely Affirming The pre-
seDce Of the deoedept at 81 Bond street on Sand the 10Th
Mr. Fraser expressed the belief that be saw the deoedeni
every day from tie Gath 10 the 2Sh Of October and In
the eTeuuR Of t1e 2th BIS language s not vey poGtve
" thsi my impression n my memory serves me right"
Mr. Fraser impressed with the idea thai his rcsigna
ton frequent topic Of Conversation between lin aud
The oecedcni during this period but appears that the
resignation for time after occurred, and the causes
leading 20 u Tor ne before IL occurred, vero the
subject VI mutual consideration bstveen himself and the
deoeAsed, 20 thA would be dacah TO Identify any pa'
houis' Jay he quite cesr, however, that the Doctor
Al dinner Sunday he 2sh. from recolecans that
Ms Frazer absent from the table that day IN col
sequence Of sickness, and the Doctor sat BY him and MS
vbo then home from school. Clarence fraser
states that he saw DR.. Burden every day" while be
vn homi last fall, but in this be ia certainly ms.
taken 70 The Isl and "a OF November, when the dece
dent N Saratoga and the witreu In New Ysrk
he also says my Impression "a saw him sunday after
me the week Afier that Sunday" There no relston
bctueen this piece OF dentistry and the dining Sunday,
except such approximation o. time the memory might
afford think the importance OF the testimony OF d.
two gentlemen hinges mainly " NOT entirely 90 The fact
whether tie absence Of krs Fraser va. limited 70 that
single day. Augustus Prime says the lacy absent
soocs twice Sunday" and Clarence Fraser that bk
mother unwell and absent from dinner the previous
Sunday October no. and that she Frequently nayed away
when Ehe not much unuel" In this coe, then, We
ind. vel n In that Of DR.. Roberts and Mr.. Bnlow,t
duplication Of the most feature tending 10 cI the
time repetition Of The collateral extrinslc circur
ersur. In the OF the witness ~ connected with
he presence OF The deoedebt This, OF course, calls Tor
some other fact 1--WE date the preference over the
other Az efor made 10 show that the ectdeni vas
attending ~ vitpas IN The United States Circuit Court
honoev the Zth Ocober, IN the case OF warner and rf
pa That case vas called Monday and Tuesday, and 90
Wednesday vas postponed for another VII ,h had
preoedenne On one Of these ocostions Or B1rdel was
nirod osd 70 Judge Dean ooanse for the defendant and
complained OF the posip Mr.. Taylor places the
event On Monday Dr. Putnam tuesday while Mr.. Pa
fsys that Judge Dean In court on Monday,
and M Barnard that he 20, there on rueday,