Supreme Court, June, 1922. [Vol. 118 married according to the laws of England, and inasmuch as there is no proof to the contrary there is a further presumption that the English law in regard to marriage is similar to our own. Hynes v. McDermott, 91 N. Y. 451; Townsend v. Van Buskirk, 33 Misc. Rep. 287. Assuming, however, that the evidence does not clearly establish a valid marriage at Gretna Green and that the evidence of cohabitation and recognition is not sufficient to raise a presumption of a valid ceremonial or other marriage under the English laws, yet all of this evidence does, it seems to me, establish that the parties went through some form of marriage ceremony in 1840 and lived together as man and wife from that time until they came to this country in 1847 in the belief that they had gone through a valid marriage ceremony. It would seem to follow that at the time they came to New York state in 1847 they believed themselves to be man and wife, which establishes the consent that is alone necessary to establish a common-law marriage. Caujolle v. Ferrie, 23 N. Y. 90, 106. In Caujolle v. Ferrie, supra, decided in 1861, a clear definition of a common-law marriage is given (p. 106): "The principles of the common law regulating marriage in this State are few and simple. To render it legal and valid, no ceremony, no solemnization, by minister, priest or magistrate, are required. Consent of the parties is the only requisite, and the marriage contract is complete when there is a full, free and mutual consent by the parties capable of contracting, even when such consent is not followed by cohabitation." See, also, Jackson v. Winne, 7 Wend. 47; Matter of Seymour, 113 Misc. Rep. 421; Matter of Biersack, supra. Furthermore, plaintiff offered documentary and other evidence showing cohabitation, acknowledgment, declarations (oral and written), conduct, repute, reception among relatives and neighbors and admissions covering the period subsequent to 1847, when George M. Chapman, Jane Chapman and Louise Chapman, the plantiff, were living in this state. Cramsey v. Sterling, 111 App. Div. 568; affd., 188 N. Y. 602; Davidson v. Ream, 178 App. Div. 362; Matter of Garner, 59 Misc. Rep. 116, 123; Matter of Terwilliger, 63 id. 479; Matter of Biersack, supra; Matter of Seymour, supra. Plaintiff testified that she and her mother lived with Eunice and Julia Chapman, the mother and sister of George M. Chapman, on Colonade road, Columbia Heights, for about a year; then for a short while on Fulton street and at No. 68 Willow street, and from 1849 to 1885 at No. 66 Willow street, corner of Pineapple street, and the Brooklyn directories from 1847 to 1855 in evidence show that George M. Chapman resided at these addresses during this time. From the testimony of the witness Houghton it appears that George M. Chapman stated that "he returned to London Misc. 763] Supreme Court, June, 1922. and brought back with him his wife and their daughter Louise, and that they all lived together in the Brooklyn house," and that he frequently spoke of Jane Chapman as his wife and the plaintiff as his daughter. Plaintiff testified that Eunice and Julia Chapman introduced her mother to neighbors and relatives as "Mrs. Chapman" and as "George's wife," and Julia Chapman, the sister of George M. Chapman, made a declaration under oath (previously referred to) that George M. Chapman had for a period of over forty years recognized the plaintiff as his daughter, all of which was received as competent and admissible as pedigree evidence. 22 C. J. 250-253; Chamberlain v. Chamberlain, 71 N. Y. 423; Matter of Kennedy, 82 Misc. Rep. 214. Jane Chapman, according to the evidence, always carried a watch which bore the inscription, Jane Chapman, 68 Willow Street," which Eunice Chapman, the mother of George, had often seen. A miniature painting of the plaintiff and her mother having at the foot thereof the inscription, "Madame G. M. Chapman et sa fille," stood in the front room of the Willow street house from 1849 to 1855. This was while George M. Chapman, Jane Chapman, the plaintiff, and Eunice Chapman and the mother of George lived together. George M. Chapman also made a written admission that plaintiff was his daughter on the flyleaf of a prayer book used by plaintiff from 1851 to 1855 in a pew in St. Ann's Church in Brooklyn, which pew was used and occupied by Eunice and Julia Chapman, Jane Chapman and the plaintiff. The inscription in the prayer book is in the handwriting of George M. Chapman, and reads: "To Louise from her Papa, G. M. C., 1851, Louise C. Chapman." I think under the circumstances this is an admission not only that plaintiff was his daughter but that she was his legitimate daughter and that he recognized and accepted her as such. The plaintiff is corroborated not only by documents, but also, as already stated, by two disinterested witnesses. Mrs. Richard Flagg testified to the effect that at Amesbury in September, 1883, and at the Seventy-seventh street house in this city about Christmas of the same year, George M. Chapman admitted that he had married Jane Chapman under the New York laws. He said at Amesbury, according to this witness during the course of a conversation with her aunt, "I simply deny that the Scotch marriage was legal. I married Jane by New York laws." She further testified that during this period George M. Chapman was ill in the Seventyseventh street house. She paid a visit to him with her aunt, Minnie Bartlett, and during this visit he said to her aunt in the course of a conversation that he did not know about the common-law Supreme Court, June, 1922. [Vol. 118 marriage (under the laws of New York) until he learned it from a lawyer he had consulted some time in the 70's when he was going to make a will and an agreement in favor of his wife Jane. The witness testified that Jane Chapman and Louise, the plaintiff, were there in the Seventy-seventh street house at the time. Witness further testified she had always known plaintiff's mother as Mrs. Chapman, and that on this occasion George M. Chapman told her aunt, Minnie Bartlett, in the presence of witness, that his wife was there taking care of him. Jane Chapman on this occasion showed to her aunt and to the witness, in the presence of George M. Chapman, the original receipt given by him to his wife for the £400 which she had loaned him many years before. Mrs. Houghton, another witness for plaintiff, testified that in the year 1883 Mr. Chapman visited her home and that she heard him tell the witness' stepmother, Mrs. Gildersleeve, that his physician said his health was in a precarious condition; that he had taken a house in Seventy-seventh street near Madison avenue and that he had sent for his wife and their daughter, Louise Ellis (plaintiff herein), and his granddaughter, Grace Ellis (daughter of this plaintiff), and his sister, Julia Chapman, to come and live with him and take care of him; that his lawyer had advised him some years before to get a release from his wife, so that he could dispose of his real estate, and that he had secured this release from his wife in return for his agreement to leave her a yearly income and to leave her a large amount in his will. This conversation took place at the residence of the witness' stepmother at No. 328 West Twenty-second street, New York city. On another occasion, between the beginning of 1883 and the end of 1885, a message came to Mrs. Gildersleeve that the Chapmans wanted to see her at their home in Seventy-seventh street. Witness went with her stepmother to the house and they were taken to Mr. Chapman's bedroom where he was lying in bed ill. Julia Chapman, his sister, took them there. Mr. Chapman talked about Louise and her mother being then ill in the house. He talked about a $10,000 note which he had given Louise in consideration of the £400 legacy given him by his wife, Louise's mother, in England shortly after their marriage. In explaining about this note to Mrs. Gildersleeve the witness heard Mr. Chapman tell how he and Jane had eloped to Gretna Green and how they were married there and how they returned to London and lived with Jane's uncle, Volney Gunn, and that Louise was born to them there; that a year or so later his wife Jane had a legacy of £400; that this, under the law of England, was given to him as Jane's husband and that he had used a part of this money to buy an interest in Misc. 763] Supreme Court, June, 1922. a New York firm which he then represented in London and Paris; that owing to business troubles he was ordered to New York, took a house in Brooklyn and sent for his mother and sister from Auburn, N. Y., and how he then returned to London and brought back with him his wife and their daughter Louise and that they all lived together in the Brooklyn house. After talking with Mr. Chapman her stepmother took the witness to Mrs. Chapman's room where they found Mrs. Chapman and her daughter Louise. On another occasion during this period Mr. Chapman called at the home of the witness' father, and when he was speaking about Louise Ellis, his daughter, he stated how much better it would have been if his daughter Louise had been a boy, so that she could help him in managing his business, and she also testified that Miss Julia Chapman, who was Mr. Chapman's sister, often came to the witness' home and often spoke affectionately of Louise Ellis as her niece. The testimony of these witnesses is clear and convincing. An effort was made to discredit or weaken their testimony and to show that George M. Chapman never lived at Seventyseventh street at any time during the period of 1883 to 1885. Plaintiff introduced a letter written by George M. Chapman from some illegible address in Seventy-seventh street on May 15, 1885. The plaintiff testified to the exact location of this house on the north side of Seventy-seventh street, three doors west of Madison avenue, and that it was leased by George M. Chapman from a Mr. Kirby, the owner. As against this evidence there is the uncorroborated testimony of Mrs. Cook that George M. Chapman never lived on Seventy-seventh street during the period 1883 to 1885. The letter of May 15, 1885, above referred to, was introduced to refute her testimony. The testimony of Mrs. Cook was clearly biased, her memory was unreliable, and altogether it impressed me as untrustworthy. Although she had been married twice, she was unable to remember the name of her first husband, nor did she remember the date of her marriage, the names or the date of birth of her twin children buried in the Chapman plot. The official records proved her memory to be remarkably defective, to say the least. George M. Chapman was apparently content with his wife and entertained no doubts as to the legality of his marriage until he desired the possession of another woman. Like King Henry the Eighth he then began to have "conscientious scruples." But as in the king's case, so with Chapman, it was not really that doubt as to his marriage "has crept too near his conscience," but rather that "his conscience has crept too near another lady." About 1855-1856 Chapman put away his wife, Jane Compton, to take up with Louise Wyeth, a woman to whom Supreme Court, June, 1922. [Vol. 118 it is conceded he was never married. He supported and maintained his wife until his death, but he transferred his affections and his company to Louise Wyeth, with whom he continued to live until shortly before his death, when we find him in precarious health again living with his wife, Jane Compton, and her daughter, this plaintiff, at the home in Seventy-seventh street. I believe it is clear from the evidence in this case that he deliberately refrained from entering into a marriage with Louise Wyeth, by whom he had two children, Hawley Chapman being the only one living, because he realized, and had been advised by his lawyer, that he was lawfully married to Jane Compton not only under the laws of England, but also under the laws of the state of New York. When Jane Compton consulted Governor Straw of New Hampshire in 1872 regarding a divorce Chapman quickly entered into a written agreement to pay her forty dollars per month and to provide for her in his will. He had lived with her as man and wife in England from 1840 to 1847 and in the city of Brooklyn from 1847 to 1855. He had recognized and held her out as his wife. He had recognized and brought up their child, this plaintiff, and educated her. He had lived for years with them in the same home in which his mother and his sister lived, and when Jane Compton died she was buried by the side of her husband, George M. Chapman, in his plot at Greenwood Cemetery. The law presumes morality and not immorality; marriage and not concubinage; legitimacy and not bastardy. I do not think the claim of the plaintiff as to the marriage is impaired or the presumptions of law overcome by any of the evidence introduced by defendants showing or tending to show apparent acquiescence, resignation or submission on the part of Jane Compton to her enforced separation from her husband. From all the evidence in this case, I am convinced that Jane Compton Chapman was the wife of George M. Chapman and lived with him and was recognized by him and held out by him as his wife in England and in this state, and that under the laws of England and under the laws of the state of New York they were legally married; that her relation with George M. Chapman was not meretricious in its inception or during its continuance and that the plaintiff is the legitimate daughter of George M. Chapman and Jane Compton. Neither the decree of Surrogate Ketcham, nor the judgment or findings in Chapman v. Chapman under the evidence in this case constitute a bar against this plaintiff (Springer v. Bien, 128 N. Y. 99, 102; House v. Lockwood, 137 id. 259, 268; Stokes v. Stokes, 155 id. 581, 592; Stannard v. Hubbell, 123 id. 520, 528; Sweet v. Tuttle, 14 id. 465), nor is the plea of laches on the part of the plaintiff sustained by the evidence. |