New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-08-25


l2 o'clock Yesterday, announced decision in the
eve Of Mrs. Cunningham, adverse to her claim to
lrtteYs OF administration as the widow Of DR.. Har
yey Burdeil.
TIE excitement which this woman has created
II the city and country since the 3lst Of last
January was in striking contrast with the calm and
composed manner in which the decision upon this
Important branch Of the csse was made known, the
announcement being made BY the Surrogate
quietly reading the following
ORDER:
SURRoGATEYs CoURT-CoUNTY OF NETWORK
In the matter Of the Estate Of Harvey Bnrde deceaed
AuGusT "a, 1857.-Let an order be entered, de-
Saarins tia, claimant Augusta CUNNINGHAM, h not
Ae widow Of the decedent and directing cIs OF 10
r.. to . ,. sSSd to the deesdeHs'
The Surrogate, after preliminary legal observations,
reviews the testimony relation to the Herkimer ab
md arrives ct the conclusion that DR.. Burdel was In
Herkimer on the 25t 10Th and 9th days of October
hst at the time Augusta Cunningham swears he wa,
N New-York making preparations for the marriage.
He then goes over the evidence of Helen and Au-
susta, concluding that Augusta stands contradiced 10
many important facts, and comes into direct collision
with the evidence showing that Dr. Burdel was at
Herkimer.
He concludes, with regard TO the testimony Of the
Rev Mr.. Marvin, that it shows some resemblance be-
tween the person married and DIR. Burdel, but no
more than might be expected in attempt to simu-
hate marriage, and that there is no recognition or
identification.
He traces the intercourse aud intimacy of the par
lies and shows that they good terms until
July 1885, when serious difficulties arose, and espe.
cay that from the 2d Of October the date OF the set
Element of the suit for SANDER down TO the time of his
death, they continued upon bad terms. From the
terms Of the settlement and various documents, from
The fact that there no Capitalization, and that
sbey constantly treated each other single from
her signing endorsing, and executing papers by her
own name from affdsvits in which she il described
BY her own name; from the circumstance that she
had lease of the house from the Doctors continued
efforts to compel her to leave the premises up to the
day before bis DEATH from her asserting during
oil these controversies, that she was his wife,
end from her making that claim for the first time after
he was dead-from all these circumstances the Surro
gate concludes that they could not have been husband
and wife, and that it was pretended ard not real
marriage.
The following is
TINE OPINION.
In the Matter Of the Estate Of Harvey BuTde deceased
The SURROGATE.-By the law Of this State mar
rage is treated merely as civil contract, not re-
curing legal forms religious sclemnities or any
special mode of proof. 1t is obvious, however
that the security Of property, domestic happiness
and the order aud vol being of society deep
~ involved in the erection Of all reasonable bar.
Ters sgainst the perpetfati0n Of fraud in reference
% institution which lies at the very basis of private
and public welfare. The policy of the law is opposed
90 c0nceament Of the marriage contract. Publicity
AFFORDS security Upon this application for letters OF
administration there is effort to establish secret
marriage. There was no open cohabitauon or ac'
acknowledgement, no max OF token OF the relationships
10 external appearance the parties lived as single per-
sons, and the alleged contract was first announced
when the lips of the decedent were sealed by DEATH
in such case there s no presumption IN favor OF
marriage; the presumption IS against it. There Is no
ground for invoking the charities OF the law but the
oneealment eIcitee suspicion and calls for gld scru-
tiny. II person viii enter INTO the honorable estate
of marriage in privacy excluding carefully the usual
public social and domestic evidences Of the nupta
contract 40 that the wife is not known until she be
come widow, the claim should be viewed with Jeal-
Spusy and strict proof be demsnded.
At the trial l allowed the widest scope OF INQUIRY
Che law permits, in order that DO means for ecing
Che truth might escape The number of the witnesses
examined in this cause the extent and complication OF
Che testimony and the great variety Of details present.
ed, have rendered review aud analysis Of the mate
rial facts protraced and laborous but the grave and
solemn duty to which was called the Importance OF
Che question at in its private and soci bear ngs
anpera,vely required that no painstakng should be
spared in exhibiting the grounds of the conviction 70
which had arrived On the evening OF October IS,
1856, the Rev. Uriah Marvin united two persons III
fAe bonds OF weclock at his resdsnce No. 1872 Green
Wieh street, in this city. One OF the parties was Em
ma Augusta Cunningham the witness was her daugh-
ter Margaret Augusta and whether the other party
-was Dr. Harvey Burdel 10 the question submitted for
my decison. This must lie determined upon the ev.
dence before me, after dscsrdiDg that which ia
worthy Of faith and credit. The point presented for
solution 10 pure question of fact-has the plaintiff
established a ceremonial marriage with the deceased!
1. l shall first inquire where the decedeRt as about
Che period oftime when the transaction foot The
claimant has ahown 20 my entire satisfaction, that on
Friday tue 2sth, Tuesday tie 18th, and Friday the
3lst OF October, he in the City of New York, and
present each Of those days at the sessions of the
Board of Directors Of the Artisans Bank, probably
from 81 or 10 to II or II o'clock. lie left for e-atoga
Friday the 3lst OF October, and returned 20 HE home
the evening of Monday, November 3. Mr.. Snyder
etaes that at Saratoga he said he came from the Vest
IL he had been 70 the West shorty before the SUBJ
afapce Of the remark might have been true but its
exact pnrport misunderstood. The contestants auege
that substantially true, and that the decedent
was at the village &C Herkimer on Saturday, Sunday
and Monday, 10Th Goth and 9Th Of October. TIE
claimant, on the other hand, adduced proof to show
he was IN the City Of Ncw-York.
J. 1t appears from tic books OF the Lafl-ge House
that Dr. Burdell paid FOR his board two occasions
when intending TO leavs for few days. seduction
was made for absence AID If he were ri Hetkimer at
the time in question, his bill running at the
hotel. Nelson Barlow derosed that Dr. w. b. Poberts
performed come dentistry for him Sundsy, October D,
and sunday, Oct. 20; thst the first occasion
other person was present the whole time whose
are did not recolect, and that the secOod occasion
he was introduced 10 DIR. Bul. These dates de-
fermned by entries In Dr. Roberts, book. Dr. Roberts
to the 9TH az October SAYS she does not know Who
was present then" he thinkR DR.. Burde ives in but
once when he WAS attending 70 Mr.. Barlows teeth,
add cods, "the only way bad Of determining whoh
OF those Sundays Il was, was tie conversation about
DIR. Frasers signing, which h6d taken place two |
three days before Now, Dr. Rsrden, according to |
Mr. Barlow, converted also generally about the RITZ
sans Bank, its officers, and wisi ed him aad Rob-
70 take stock IL the institution. So far the utar
view might have happened tho 1L Of October,
dOes be emove positively 10 the 26k when he says
" he also spoke Of Mr.. Fraser, as wei a. recoect