Los Angeles herald., 1892-10-30
DELF|NA NOT B, COINS WIFE,
The Celebrated Will Contest
Case at Last Decided.
Judge Clark Handed Down a Lengthy
Opinion Yesterday.
Tho Children are Declared Illegitimate,
but VIII Inherit Portion of the
Large Estate The Mother and
One Child Ruled Out.

TWO OF Cn6 superior court handed COWl
the long expected opinion on the cele
brated Cohn case.
The trial OF this case last spring wal
one Of the longest in the history of the
court. The struggle was over the dis
tribution Of the estate of B. Cohn, wht
left property believed to be worth abou
$250,00O, although appraised at ONLY
$67 900.
The case involved very intricate ques
tions in hsirship, which Judge Clarl
discusses at great length in his opinion
There was quite an array of counsel il
the case. The contestants were repre-
sented by Shinn & Ling, Smith & Win
der and d. p. Hatch, while the defense
was conducted by Stephen M. White
Brunson, Wilson & Lamme and Horace
Appel.
The points of Judge Clark's decision,
which covers 25 type-written pages, are
presented below:
This is contest, be says, arising upon
q petition for distribution and upon a
petition to determine heirship under the
provisions of section 1864, Code of Civil
Procedure, and suit to quiet title
brought by Julius B. Uohn against Del
fina Varelas Cohn was submitted upon
the same evidence.
The decedent, B. Cohn, died November
/, 1889, leaving an estate inventoried
and appraised at e7,762.08. He left
surviving him as admitted legitimate
children and heirs at law, Julius B.
Cohn, Caspar Cohn and Mrs. Carrie
Cohn. The contestants are Delfna Var
elias de Cohn, who claims to be the
widow of the deceased, and her children,
Bernard, Miguel, Marcos and Eduardo
Cohn, who claim also to be the children
of the deceased, and as such entitled to
share in the distribution of his estate.
Upon the contest, the first question
naturally presenting itself, continues
the court, is whether or not the relation
of husband and wife ever existed be-
tween B. Cohn and the principal con-
testant. 1t was not commended by the
contestants that there was any marriage
declaration or solemnized marriage
within the provisions OF the law pre-
scribing the eolemnization by ceremony,
the securing of license and the usual
forms followed in such caseE, but they
rested upon section 81 of the civil code,
which reads: Consent to and subse-
quent contamination of marriage may
be manifested in any form, and may be
proved under the same general rules of
evidence as facts in other cases."
The petitien of the contestants may be
stated, said the court, thus: That the
decedent and principal contestant ex-
pressly agreed by written contract, De-
cember %, 1885, to be husband and
wife; that the consent was followed by
q mutual assumption of marital rights,
duties and obligations; that indepen-
dent OF any express consentthe evidence
of cohabitstion and repute is sufficient
to establish valid marriage.
The minor contestants assert that, be-
ing the children OF B. Cohn and Del
fina, they were legitimized by this mar
riage; that the contract constituted
them his heirs, he having admitted
them to be his, and that the evidence
adduced establishes their adoption by
the deceased.
The court then proceeds to an exam
ination of the evidence, which, he says,
was exceedingly voluminous. The trial
began November IL, 1891, and continued
to January IL, 1892. nearly 300 witnesses
being examined and a large volume of
documentary evidence introduced. OF
this mass of evidence, the court says,
it was conflicting and not altogether sat-
isfactory or free from doubt. The proof
of consent was both direct and indirect
The story of Delfna Varelas de Cohn's
life, as told by herself, was briefly that
she first met B. Cohn in 1872, when she
was 18 or 10 years of age. Believing
him to be unmarried, she became inti-
mate with him, and gave birth to
child of which he was the father. Find
ing him to be a married man, she re-
preached him. He promised to obtain
a divorce and marry her, but did not do
it, and she lived with him as his mis-
tress until December, 1888. Children
were born to them which he acknowl-
edged to be his, and baptized as such,
giving the first born his name, Bernard
Cohn. His wife died in June, 1885, and
he agreed again to marry her. He be-
ing Of Jewish faith, and she of Catholic,
he told her he would marry her by con-
tract, and December %, 1886, the mar
riage, or attempted marriage, took place
in the presence OF the parties, j. A. Do
mingo and her mother.
The substance of the contract was that
they had lived together a long time, six
children being born, OF whom four we're
still living. and to leave them without
stain he took Delfina to be his wife and
she took him to be her husband.
The contract could not be produced in
evidence. Mrs. Delfina testified that
she put it in bureau drawer and saw it
last in April, 1887. She could not find
It, told the deceased about it, but, while
she thought he had taken it, did not &C.
cuse him of it. Prior to it's disappear
ance he had asked her for it and she
refused. After the contract was exc
cuted they lived as before, and in April,
1887, Eduardo was born.
The testimony of witnesses corrobora-
tive of Delfina's story is discussed by
the court at length, and the contention
of the defense that no contract was ever
executed. These witnesses also testified
az to Cohn having introduced the con-
testant as his wife, of having lived with
her as husband, and the general repu-
tation that they were husband and wife,
and that he had admitted it on numer.
ous occasions. One of them, Michael
Stack, testified that, at Cohn's instance
he took the contract from the drawer
where Mrs. Cohn put it and gave it to
the deceased After weighing the evil
dence Of all the witnesses the court
says, ,;.o -
think that I would be justified in rejects
ing the testimony of those witnesses,
and upon that issue, the issue OF the
execution Of the contract of December
23. 1885. am impelled to the conclu-
sion that the weight of the evidence pre-
-.~-.ao~o<oa v,ror fha side of tho affirma-