In re the Estate of Erlanger

O’Brien, S.

This trial of the issue of the status of a contestant in the pending probate proceeding began on October 19, 1931, and with the exception of a recess of one day in November, and of three and a half days in Christmas week occasioned by the death of decedent’s sister, continued without interruption until Monday, January 11, 1932, at two p. m.; 149 witnesses were called in the trial, 834 exhibits were marked in evidence and the record fills 6,965 pages. The period of the cohabitation of the parties runs from *3 early in 1920 down to the date of decedent’s death on March 7, 1930. Practically every part of this period, and in the years 1927-1928-1929 practically every day up to March 7, 1930, when decedent died, is covered by the proofs. It seems not only logical but helpful to present in the first instance some of the landmarks of the law relating to common-law marriages. Parenthetically, it may be stated that while the trial developed many unique situations and individual features, it also disclosed many of the common characteristics of leading common-law marriage cases. With the following authorities before us, when we come to analyze the evidences adduced we will have a truer perspective of the proofs.

Chancellor Kent in his Commentaries (12th ed., edited by O. W. Holmes, Jr., part IV, lect. XXVI, pp. 87, 92, 93) declares: “ No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium, that consent is all that is required by natural or public law. The Roman lawyers strongly inculcated the doctrine, that the very foundation and essence of the contract consisted in consent freely given, by parties competent to contract. Nihil proderit signasse tabulas, si mentem matrimonii non fuisse constabit. Nuptias non concubitus, sed consensus facit. This is the language equally of the common and canon law and of common reason. If the contract be made per verba de prcesenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesice. * * * As the law of marriage is a part of the jus gentium, the general rule undoubtedly is that a marriage, valid or void by the law of the place where it is celebrated, is valid or void everywhere.”

Chancellor Walworth declared in Rose v. Clark ( 8 Paige, 574, 579 ): “ For it is now a settled rule of the common law which was brought into this State by its first English settlers, and which was probably the same among the ancient Protestant Dutch inhabitants, that any mutual agreement between the parties to be husband and wife in praesenti, especially where it is followed by cohabitation, constitutes a valid and binding marriage; if there is no legal disability on the part of either to contract matrimony (2 Kent Com. 87). * * * That an actual marriage may be inferred in ordinary cases, from cohabitation, acknowledgments of the parties, etc., as well as by positive proof of the fact, there can be no room to doubt (see Math, on Pres. Evid. 283, and cases there cited). And the only *4 doubt in this case arises from the proof of the fact that the matrimonial cohabitation between these parties commenced, previous to the death of the first husband under a contract of marriage which was absolutely void previous to the revised statutes; although neither of them may have known at the time that Frink was still living (Valleau v. Valleau, 6 Paige’s Rep. 210). It appears, however, from decisions in our own courts, as well as in England, that a subsequent marriage may be inferred from acts of recognition, continued matrimonial cohabitation and general reputation; even where the parties originally came together under a void contract of marriage. The case of Wilkinson v. Payne (4 Durn. & East’s Rep. 468) carried the doctrine of presumption to a very great length on the subject. There the marriage was absolutely void under the English marriage acts, for the husband, whose parents were dead, was under age at the time the ceremony was performed and had no legal guardian to consent to the marriage. And when he after-wards became of age his wife was upon her deathbed and actually died in three weeks from that time. But upon proof that the father of the wife, who was the defendant in that suit, and the rest of his family, had always treated them as husband and wife, Justice Grose, before whom the cause was tried, left it to the jury to presume a legal marriage after the husband was of age; which they did. And the court of king’s bench refused to disturb their verdict.” (Citing Fenton v. Reed, 4 Johns. 52 , and Jackson v. Claw, 18 id. 346.)

Bishop, an authority quoted in practically every State in the Union, declares (1 Bish. Mar. & Div. [6th ed.] § 457): “ Every intendment of the law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular) and whatever the form of the proofs, the law raises a strong presumption of its legality; not only casting the burden of proof on the party objecting, but requiring him throughout, and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void. * * * Ana! the strength of the presumption increases with the. lapse of time through which the parties are cohabiting as husband and wife.”

The United States Supreme Court, 1907 (Travers v. Reinhardt, 205 U. S. 423, 440 ), in a case where the parties had lived a few months in the State of New Jersey, held: “ We are of the opinion that even if the alleged marriage would have been regarded as invalid in Virginia for want of a license, had the parties remained there, and invalid in Maryland for want of a religious ceremony, had they remained in that State, it was to be deemed a valid marriage in New Jersey after James Travers and the woman Sophia, as husband *5 and wife, took up their permanent residence there and lived together in that relationship continuously, in good faith and openly, up to the . death of Travers — being regarded by themselves and in the community as husband and wife. Their conduct towards each other in the eye of the public, while in New Jersey, taken in connection with their previous association, was equivalent in law to a declaration by each that they did and during their lives were to occupy the relation of husband and wife. Such a declaration was as effective to establish the status of marriage in New Jersey as if it had been 'made in words of the present tense after they became domiciled in that State.” (Italics are writer’s.) (See also, Meister v. Moore, 96 U. S. 76 .)

Judge Kellogg, in a recent decision, in which all concurred (Fisher v. Fisher, 250 N. Y. 313, 316, 317 ), succinctly states historical aspects of the law of common-law marriages: “It is elementary that marriage is a civil contract; that the law deals with it as it does with all other contracts; that it pronounces a marriage to be valid wherever a man and woman, able and willing to contract do, per verba de prcesenti promise to become husband and wife. (Black Com. Sharswood, vol. 1, pp. 432 — 441; Kent’s Com., vol. 2, p. 57; Clayton v. Wardell, 4 N. Y. 230 ; Matter of Ziegler v. Cassidy’s Sons, 220 N. Y. 98 ; Meister v. Moore, 96 U. S. 76 .) A formal ceremony of marriage, whether in due form or not, must be assumed to be by consent, and, therefore, prima facie a contract of marriage per verba de prcesenti. (Fleming v. People, 27 N. Y. 329 .) According to the common law of all Christendom, consensual marriages — i. e., marriages resting simply on consent per verba de prcesenti — between competent parties, are valid marriages. (Wharton’s Conflict of Laws, secs. 171-173.) ‘ This view prevailed, and may be said to have been the common law of Christendom, as it had been of the old Roman Empire, down till the Council of Trent.’ (Maitland Select Essays in Anglo-American Legal History, vol. 3, p. 810.) The canon law declared a valid marriage existed where competent parties should covenant, ‘ ego te accipio in meam,’ and ‘ ego te accipio in meum.’ (Wharton, sec. 171.) Consensual marriages were valid in England, Scotland, The Netherlands, Spain, Portugal, Germany and the United States. (Wharton, secs. 172, 183.) ' Marriage is a thing of right, recognized in all countries, in all ages, among all people, all religions, all philosophies. It pertains, therefore, in the highest sense, to the law of nations, in distinction from the law of any particular state or country.’ (Bishop Marr. & Div. vol. 1, sec. 351.) Marriage between parties capable of contracting is ‘ of common right, and valid by a common law prevailing throughout Christendom.’ (Hutchins v. Kimmell, 31 Mich. 126 .) * * * ‘ Prima facie a good marriage is shown when the con *6 tract is proved with cohabitation following it, and we cannot assume that there are regulations restrictive of the common right until they are shown/ (Per Cooley, J., in Hutchins v. Kimmell, supra.) Every presumption lies in favor of the validity of a marriage. (1 Bishop, § 13; Piers v. Piers, 2 H. L. Cas. 331; Hynes v. McDermott, 91 N. Y. 451 .) Marriage between the parties to this action was not subject to any bar imposed by the common voice of Christendom. Consequently, although no law of any State, territory or district of the United States, sanctioning the marriage of the parties to this action, may have followed the ship Leviathan upon the high seas, in the absence of any such law, which condemned the marriage, we think that they were lawfully married.”

The erudite Robert Ludlow Fowler, who for many years adorned this court, in Matter of Spondre ( 98 Misc. 524, 531 ) held: “ The necessary declarations of Henry and Rachel Spondre to the commissioners of immigration at the Port of New York, of themselves constituted, at common law, a perfectly good contract of marriage per verba de preesenti. Their cohabitation and union is not denied, and, indeed, is established beyond all peradventure. * * * If we inquire what other evidence besides that denoted above there may be of such marriage, let me say that evidence, which I had always believed until lately was universally regarded as the highest kind of evidence known to the law of civilized peoples •— I refer to reputation and cohabitation. ' (People v. Humphrey, 7 Johns. 314 ; Hynes v. McDermott, 91 N. Y. at page 463 , 43 Am. Rep. 677 , where all the authorities are reviewed.) ” After citing Blanchard v. Lambert ( 43 Iowa, 228 ), the court said that Henry and Rachel Spondre were married under the old law of this State, their arrival in this port as husband and wife, followed by their long cohabitation in this city and by the established general repute of their marriage, sufficiently demonstrates for this matter.

In O’Gara v. Eisenlohr ( 38 N. Y. 298 ), a New York decision cited in Travers v. Reinhardt ( 205 U. S. 438 ), our Court of Appeals held: “ It was entirely competent to prove the marriage by cohabitation, acknowledgment of the marriage by the parties themselves, reception of them as man and wife by their relatives and friends, and common reputation. (Matthews Pres. Ev. 283; 4 Johns. 52 ; 18 id. 346; 4 Comst. 230; 5 Day, 290 ; 9 May, 114; 8 Serg. & Rawle, 159 .) Marriage with us is but a civil contract, and no ceremonial is necessary to create this relation. A contract of marriage made ‘ per verba de preesenti ’ amounts to an actual marriage and is valid, and marriage is inferred when the parties live and cohabit together with all the concomitants of this case. * * * The presumption of law, also, is in favor of innocence, and against the commission of crime and immorality ” (p. 301).

*7 Another Court of Appeals decision cited throughout the land is Badger v. Badger ( 88 N. Y. 547 ), which ought to be read and studied by all who are interested in the law of common-law marriages, particularly because it presents a masterly analysis of the facts and a deep insight into everyday life and human affairs. The court held: “ The reputation attending this cohabitation in the neighborhood where it existed and was known among those brought into its presence by relationship, business, or society, was that which ordinarily attends the dwelling together of husband and wife. It has been well described as the shadow cast by their daily lives (1 Bishop on Marriage and Divorce, § 438). In the general repute surrounding them, the slow growth of months and years, the resultant picture of forgotten incidents, passing events, habitual and daily conduct, presumably honest because disinterested, and safer to be trusted because prone to suspect we are enabled to see the character of the cohabitation, and discern its distinctive features. It is for that reason that such general repute is permitted to be proven. It sums up a multitude of trivial details.”

The same court in a later decision (Wilcox v. Wilcox, 46 Hun, 32 ) held: “ The general definition of ‘matrimonial cohabitation is the living together of a man and woman ostensibly as husband and wife’ (1 Bish. on Mar. and Div. § 777; Yardley’s Estate, 75 Penn. St. 207; Pollock v. Pollock, 71 N. Y. 137 ). This does not necessarily require the announcement further than it is given by the appearances of the purpose of the parties. There must be sufficient to fairly represent such relation by the manner in which the parties are living together. The fact that Wilcox kept rooms in his own house which he occupied a portion of the time at least, is a circumstance bearing upon the question of cohabitation, but is not necessarily inconsistent with it. (Badger v. Badger, 88 N. Y. 547 .) ”

Another decision of this State quoted far and near and cited by all writers on common-law marriages is Hynes v. McDermott ( 91 N. Y. 451 ), which should be examined as should Gall v. Gall ( 114 N. Y. 109 ) and Badger v. Badger (88 id. 547), particularly for the benefit of observing the court’s treatment of the facts in the case. In some aspects this authority is especially applicable to the instant case: “ There is no direct evidence of the interchange of consents during their stay in Paris. There was evidence that they lived together there in the apparent relation of marriage, and assuming that what occurred between them in Cleveland street, did not constitute a valid marriage by the law of this State, for the reason that the law of England can only be resorted to, to determine the effect of that transaction, we are, nevertheless, of opinion that the jury were authorized to find that in France the requisite consents were interchanged, and *8 that the parties, then and there, became husband and wife. The presumption of- marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law. This is especially true in a case involving legitimacy. The law presumes morality, and not immorality; marriage, and not concubinage; legitimacy, and not bastardy. Where there is enough to create a foundation for the presumption of marriage, it can be repelled only by the most cogent and satisfactory evidence.” (Citing Morris v. Davies, 5 Cl. & Fin. 163, and Piers v. Piers, 2 H. L. Cas. 331.) Adhering to the principles previously laid down, the Court of Appeals in Gall v. Gall ( 114 N. Y. 109, 117 ), which may be justly entitled as a generally accepted authority upon common-law marriage status, held: “ The cohabitation, apparently decent and orderly, of two persons opposite in sex, raises a presumption of more or less strength that they have been duly married. While such cohabitation does not constitute marriage, it tends to prove that a marriage contract has been entered into by the parties. Where, however, the cohabitation is illicit in its origin, the presumption is that it so continues until a change in its character is shown by acts and circumstances strongly indicating that the connection has become matrimonial. It is sufficient if the acts and declarations of the parties, their reputation as married people and the circumstances surrounding them in their daily fives, naturally lead to the conclusion that, although they began to five together as- man and mistress, they finally agreed to five together as husband and wife. (Caujolle v. Ferrie, 23 N. Y. 90 ; O’Gara v. Eisenlohr , 38 id. 296; Badger v. Badger , 83 id. 546, 554; Hynes v. McDermott, 91 id. 451, 457.) ”

Surrogate Slater in an exhaustive opinion in a case in which it appeared that the parties, residents of Westchester county in the period (1902-1908) when common-law marriage was not valid in this State, went to Philadelphia and sent a card through the mails announcing their marriage — a brief statement of two fines, and the next day returned to Westchester county, where they afterward lived. The surrogate held: “After the impediment had been removed, the law will presume that the decedent and the petitioner consented and agreed to continue their relations as husband and wife. The evidence shows that they acted accordingly. At all times they had acted in good faith. Duration of cohabitation must be taken in consideration. Immediately on January 1, 1908, a contract of marriage will be presumed to have been entered into. Their conduct established the contract. The presumption of marriage, when it once arises, is a strong one, there can be no doubt, but it is certainly rebuttable. (Caujolle v. Ferrie, 23 N. Y. 90 ; *9 Hynes v. McDermott, 91 id. 451.) ” There was a good common-law marriage in this State between the petitioner and the decedent, and the relations established and recognized for so long a time ought not to be set aside. The common-law marriage has been established very clearly by actual cohabitation as husband and wife, acknowledgment, declarations, conduct, repute and reception among friends and neighbors. The facts presented justify holding that the parlies were twofold married. They did in truth and in fact agree to enter into and sustain the marriage relation contracted at Philadelphia, Pa., on January 18,1903, and likewise under our law on January 1,1908. (Matter of Seymour, 113 Misc. 421 .) Maryland has laid down the same principle (Richardson v. Smith, 80 Md. 89, 93 ), holding: “ The law has wisely provided that marriage may be proved by general reputation, cohabitation and acknowledgment; when these exist, it will be inferred that a religious ceremony has taken place; and this proof will not be invalidated because evidence cannot be obtained of the time, place and manner of the celebration of the marriage. On this point we think it unnecessary to do more than quote from Redgrave v. Redgrave ( 38 Md. 93, 97 ): ‘ Where parties live together ostensibly as man and wife, demeaning themselves toward each other as such and are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favor of morality and decency, presume that they have been legally married. (1 Taylor, Evidence, §§ 140, 517; Hervey v. Hervey, 2 W. Bl. 877; Goodman v. Goodman, 28 L. J. Ch. 1; Jewell v. Jewell, 1 How. 219, 232 .) ’ ”

Justice Cooley in Hutchins v. Kimmell ( 31 Mich. 126 ; 18 Am. Rep. 164 ), speaking for the court in discussing common-law marriage, said in part: “ Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts; the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it, citing Fenton v. Reed, 4 Johns. 52 ( 4 Am. Dec. 244 ); Jackson v. Winne, 7 Wend. 47 ( 22 Am. Dec. 563 ); Starr v. Peck, 1 Hill, 270 ; Rose v. Clark, 8 Paige, 574 ; Matter of Taylor, 9 Paige, 611 ; Clayton v. Wardell, 4 N. Y. 230 ; Cheney v. Arnold, 15 N. Y. 345 ( 69 Am. Dec. 609 ); O’Gara v. Eisenlohr, 38 N. Y. 296 ; Pearson v. Howey, 11 N. J. Law, 12; Hantz v. Sealy, 6 Binn. 405 ; Commonwealth v. Stump, 53 Pa. St. 132 ( 91 Am. Dec. 198 ); *10 Newbury v. Brunswick, 2 Vt. 151 ( 19 Am. Dec. 703 ); State v. Rood, 12 Vt. 396 ; Northfield v. Vershire, 33 Vt. 110 ; Duncan v. Duncan, 10 Ohio St. 181 ; Carmichael v. State, 12 Ohio St. 553 ; State v. Pat terson, 2 Ired. 346 ( 38 Am. Dec. 699 ); Londonderry v. Chester, 2 N. H. 263 ( 9 Am. Dec. 61 ); Keyes v. Keyes, 2 Fost. (N. H.) 553; Bashaw v. State, 1 Yerg. 177 ; Grisham v. State, 2 Yerg. 589 ; Cheseldine’s Lessee v. Brewer, 1 H. & McH. 152 ; State v. Murphy, 6 Ala. 765 ( 41 Am. Dec. 79 ); Potier v. Barclay, 15 Ala. 439 . Dumaresly v. Fishly, 3 A. K. Marsh. 368; Graham v. Bennet, 2 Cal. 503 ; Case v. Case, 17 Cal. 598 ; Patton v. Philadelphia, 1 La. Ann. 98 ; Holmes v. Holmes, 6 La. R. 463; Hallett v. Collins, 10 How. 174 .” On the subject generally of common-law marriage the following may profitably be considered: Dalrymple v. Dalrymple (2 Hagg. Consist. 54-137), a most scholarly and comprehensive opinion which every student of this branch of the law should read and analyze, the report of decision and exhibits covers 249 pages); Lindo v. Belisario (1 Hagg. Consist. 216; id. appendix, p. 217, in which the Jewish law is discussed with much detail and opinions of experts examined and works of the learned Maimonides and Beth Joseph consulted); The Queen v. Millis (10 Cl. & Fin. 534, a most exhaustive opinion of 373 pages on marriage per verba de prcesenti); Hallett v. Collins ( 10 How. 181 ); Meister v. Moore ( 96 U. S. 82 ); Jewell’s Lessee v. Jewell ( 1 How. 218 ); Maryland v. Baldwin ( 112 U. S. 490 ); Adger v. Ackerman ( 115 Fed. 124 ); Hamlin v. Grogan (257 id. 59); Hutchinson v. Hutchinson ( 63 N. E. 1023 ); Medway v. Needham ( 16 Mass. 157 ); L. R. A. 1915 E; note to Grigsby v. Reib ( 105 Tex. 597 ; 153 S. W. 1124 ); note to Becker v. Becker ( 153 Wis. 226 ; 140 N. W. 1092 ); note to People v. Shaw ( 259 Ill. 544 ; 102 N. E. 1031 ); these notes appended to said three decisions in Texas, Wisconsin and Illinois cases respectively and published in L. R. A., supra, present a most exhaustive study of common-law marriages as recognized in the several States of the Union; 18 R. C. L. § 10, chapter on common-law marriage; R. C. L., Permanent Supplement, 6; “ Marriage and the State,” (Richmond & Hill, Russell Sage Foundation); “ Marriage Laws and Decisions in the United States” (Geoffry May, Russell Sage Foundation); “ Getting a Divorce ” (by Isabel Drummond, publ. Alfred Knopf). Consult, also, “ Common Law Marriage ” by Koegel, especially the chapter on the Council of Trent; Matter of Taylor ( 9 Paige, 611 ); Fenton v. Reed ( 4 Johns. 52 ); Rose v. Clark ( 8 Paige, 573 ); Bissell v. Bissell ( 55 Barb. 325, 327 ); Cheney v. Arnold ( 15 N. Y. 345, 347 ); Chamberlain v. Chamberlain (71 id. 423, 427 ); Ziegler v. Cassidy’s Sons (220 id. 98); Matter of Hinman ( 147 App. Div. 452 ; affd., 206 N. Y. 653 ); Boyd v. Boyd (252 id. 422); Miller v. Amalgamated Laundries (257 id. 588): Chamberlain v. Chamber *11 lain (68 N. J. Eq. 414; affd., Id. 736); Clark v. Clark (52 id. 650); Smith v. Smith (52 N. J. Law, 207); Schaffer v. Schaffer (88 N. J. Eq. 19); Burger v. Burger (105 id. 403, 409); People v. Pizzura ( 211 Mich. 71 , opinion by Moore, C. J., concurred in by his eight colleagues); Askew v. Dupree ( 30 Ga. 173 ); Matter of Schroeder ( 205 App. Div. 883 ); Matter of Cofer ( 119 Misc. 587 ; affd., 206 App. Div. 657 ; affd., 237 N. Y. 512 , in both of which cases Surrogate Foley’s decisions were affirmed); Matter of Maggio (Foley, S., N. Y. L. J. July 5, 1931); Matter of Briggs ( 138 Misc. 136 ; affd., 232 App. Div. 666 ); Matter of Biersack ( 96 Misc. 161 , 173, 174); Applegate v. Applegate (118 id. 359-362, opinion by Lazansky, J.); Matter of Meyers (129 id. 760, Foley, S.); Matter of Murtha (136 id. 424; revd., 232 App. Div. 285 ; latter decision reversed in Court of Appeals, 259 N. Y. 456 ); Matter of Smith (Wingate, S., 136 Misc. 863 ).

The foregoing authorities clear the way for a statement of the evidence, but still further clarity and better understanding of the proofs presented and the weight to be allotted to this or that item of evidence if these proofs be considered in the light of the following: (1) One of the parties to the alleged marriage is dead and the other party, the contestant, upon talcing the witness stand, was in the very first instant barred from testifying concerning her relations, conversations, etc., with decedent by the proponents’ objection raised under section 347 of the Civil Practice Act, so that both are mute so far as oral testimony is concerned. (2) One of the proponents, Baron, renounced his executorship before taking the witness stand so that he might testify as to acts and conversations with decedent without opening the door to the testimony of contestant concerning the decedent, but he did not resign his temporary administratorship, which he continues to hold. (3) Proponents as temporary administrators have been in possession of the books, records, files, letters, telegrams and personal effects of decedent and have continued the theatrical business of decedent. (4) Testimony was elicited by proponents from Pratt, the auditor, still employed in the Erlanger offices, which indicates a purpose to claim as a gift to them all of the stock of two of the principal corporations of decedent’s enterprises, viz., the Erlanger Amusement Enterprises, Inc., and the Erlanger Beal Estate Corporations (5684). (5) By a decree of divorce made in 1912 in favor of Adelaide Louise Erlanger decedent was prohibited from marrying in the State of New York during the lifetime of the plaintiff, who is still alive. A violation of the terms of this decree would constitute bigamy under the statutes of this State. The Penal Law, section 340, defines bigamy and fixes the punishment in a penitentiary or *12 State prison at not more than five years, and section 8 of the Domestic Relations Law (as amd. by Laws of 1919, chap. 265) declares: “Marriage after divorce for adultery. Whenever a marriage has been or shall be dissolved, the complainant may marry again during the lifetime of the defendant. But a defendant for whose adultery the judgment of divorce has been granted in this State may not marry again during the lifetime of the complainant, unless the court in which the judgment of divorce was rendered shall in that respect modify such judgment, which modification shall be made only upon satisfactory proof that three years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of said marriage has been uniformly good; * *

In McKinney’s Consolidated Laws of New York, book 14, page 30, section 8 of the Domestic Relations Law is annotated as follows: “ Re-marriage of one divorced for adultery as bigamous. For the purpose of enforcing a statute which declares that every person having a husband or wife living who shall marry again, shall, except in specified cases, be adjudged guilty of bigamy, a person against whom a divorce has been obtained because of adultery and who has not received a judicial permit to remarry, is regarded as having a husband or wife living. A person, therefore, so divorced and so under a disability, who marries, is guilty of bigamy. (People v. Faber, [1883] 92 N. Y. 146 ; 44 Am. Rep. 357 ; reversing 29 Hun, 320 , and over-ruling People v. Hovey, 5 Barb. 117 ; compare Moore v. Moore, [1877] 8 Abb. N. Cas. 171 .) ” (6) The United States Code, title 18, section 398, provides as follows: “ Any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other unmoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, *13 or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court. (June 25, 1910, c. 395, § 2, 36 Stat. 825 .) ” (7) Decedent was a dominant character who had reached the pinnacle of far-reaching power and prominence in the theatrical world, his properties and business being located in many of the populous cities in this country. His brother, one of the proponents, was, until recently retired, a Supreme Court judge; until recently he was a bachelor and lived during the period of the relationship of the parties with his unmarried sister, Ray, who died during the trial of this issue. Contestant was a daughter of Rudolph Fixel and Deha Ferdelin, and a cousin of Olivia Leventritt and a niece of the late Supreme Court Judge David Leventritt. She took up voice culture with Clara Kalisher in 1902 and later went on the stage, appearing in many well-known productions. “ In cases of this kind the character of the parties to the alleged marriage is of much importance.” (Surrogate Fowler in Matter of Eichler, 84 Misc. 672, 673 , citing Chamberlain v. Chamberlain, 71 N. Y. 423 ; Matter of Brush, 25 App. Div. 610 .)

The contestant called the following witnesses:

Walter S. Thompson, bank teller in the Union Dime Savings Bank, with which he has been connected for forty years; knew the contestant, could not recall exactly how long, but he should say twenty years about. He first became acquainted with her under the name of Charlotte Fixel; she was a depositor in his bank; her account was changed to Charlotte Lesley, her occupation was given as that of an actress. Later on he got to know her as Mrs. Erlanger, and fixes the date as possibly 1920 or 1921. He was unable to fix the date upon being told at what time the play “ Mary ” was being presented at the Knickerbocker Theatre, having received through the contestant tickets for that play. It was conceded by counsel that the play ran from October 18, 1920, to April 23, 1921. He recognizes his handwriting on plaintiff’s Exhibit 259; the number of the account and “ Fifty shares of Bethlehem Steel ” being in his handwriting. He received this order for the purchase of the fifty shares of Bethlehem Steel from Mrs. Erlanger, and the account in the bank at that time was in the name of Charlotte Lesley. He passed it along to the assistant treasurer, Mr. Miller; he recognized Mr. Miller’s signature on plaintiff’s Exhibit 261; *14 plaintiff’s Exhibit 259 had already been shown him; he identifies three sheets which compose plaintiff’s Exhibit 257; the date on one is January 27, 1922; the second, October 4, 1923, and the third, October 9, 1924. In each instance Mr. Thompson wrote the words, “ Charlotte Lesley,” and on two of them, “ 232 West End Avenue,” and at the time he wrote the name Charlotte Lesley on these he knew that Charlotte Lesley and Mrs. Erlanger were the same person.

Miss Clara Kalisher, who first taught singing lessons to the contestant in 1902, contestant having been brought to her studio by Miss Olivia Leventritt, a claughter of Judge Leventritt and Mrs. Erlanger’s cousin, testified that Miss Leventritt introduced her as her cousin. She first met the decedent in 1920 or 1921; went with Mr. and Mrs. Erlanger to see the “ Yankee Princess ” at the Knickerbocker Theatre. Contestant introduced her when they got into the car, stating, “ This is my vocal teacher, Miss Clara Kalisher,” and she said, “ Clara, I would like you to know my dearly beloved husband.” From that time on she continued to visit her at the West End avenue home. When she called up the West End avenue home, she asked for Mrs. Erlanger, and was always connected with Mrs. Erlanger.

Charles J. Keeley, in the fish business at No. 227 Columbus avenue, testified that he knew Mrs. Erlanger and served her fish at the West End avenue address; that she generally went over herself; that he always marked on the ticket “ Mrs. Erlanger; ” that she would say, “ Send this to Mrs. Erlanger at my house; ” that he addressed her as Mrs. Erlanger; that is all he knew her by; that he judges the time to about thirteen years ago. Later he said that he would not say positively about thirteen years, he could not say for sure — it might be only ten years, he could not say really. He has no books to show when she started to trade there. He served her also at No. 175 Riverside drive. He insists that he testified “ about thirteen years ago,” and says that it may be only ten.

Hugh C. Reilly, a butcher at No. 235 Columbus avenue, formerly at Amsterdam avenue, corner of Seventieth street, testified that he knew Mrs. Erlanger, he guesses, for the last ten years; that she came to the store; that he knew her as Mrs. Erlanger and sold her meat and delivered it at the West End avenue home and also at the Riverside drive apartment, he thinks, for over a period of nine or ten years. He said that he served Mr. Erlanger before when he had a housekeeper.

Henry W. Noll, a retail grocer in Columbus avenue, knew the contestant as Mrs. Erlanger. She marketed at his place of business, *15 beginning to market with him some time after December, 1919, and continued to market with him for eight years or more, deliveries being made to the West End avenue house and to the No. 175 Riverside drive apartment; that everybody in his place knew her by the name of Mrs. Erlanger.

Alphonso Russo, a fruit and produce dealer with a store on Amsterdam avenue, between Sixty-seventh and Sixty-eighth streets, testified that he knew Mrs. Erlanger for about four or five years; that she did her own marketing and that he delivered produce and fruit at her home at No. 175 Riverside drive; that that is the only address of hers that he knew.

Pierre V. Senegas, hairdresser, knew contestant first as Charlotte Lesley and later as Mrs. Erlanger. He knew her as Charlotte Lesley since 1905, met her at the West End avenue house, where he went to dress her hair, also saw her at Riverside drive. Visited the apartment at Riverside drive; dined there with Mr. and Mrs. Erlanger. Witness addressed her as Mrs. Erlanger; decedent-addressed her as “ Darling,” “ Charlotte,” “ Dearest,” or as Mrs. Erlanger. He dressed her hair before he met Mr. Erlanger; had records in his books of appointments made for Mrs. Erlanger; books from 1922 to 1929; said he always did her hair; dressed it himself; he brought the books for each year running from 1922 to 1929; said she had been his customer since 1905. His place is located in the theatrical district; said he did not keep any books before 1922; prior to that time kept his appointments on slips of paper.

Ulysses 0. Brown, the private telegrapher and telephone switchboard operator at decedent’s office from 1921 to May, 1926, testified that he delivered packages and letters to Mrs. Erlanger at No. 232 West End avenue, decedent directing him to report to Miss Donnelly and get the package and take it to Mrs. Erlanger at No. 232 West End avenue. At the house he asked for Mrs. Erlanger and delivered the package; that every day for five years, except Sundays, he telephoned to Mrs. Erlanger at the West End avenue home for Mr. Erlanger; that it was a custom when the latter was going to lunch for him to say, “ Call up Mrs. Erlanger and tell her that I am going to lunch downtown and I won’t be home for lunch,” or “ I will be home for lunch,” and that he would designate the hour and that it was a further custom for him, Brown, to call up Mrs. Erlanger and. tell her that Mr. Erlanger was on the way; that upon leaving decedent’s employ he was given a written recommendation by the general manager, Bergman (this is decedent’s nephew). On cross-examination he adheres to his statement that every day for five years, except Sundays, when decedent was in town, *16 at his personal request he called Mrs. Erlanger once a day and mostly twice a day.

Lars Jorgensen, in decedent’s employ for over seven years — from about 1923 to May 31, 1930 — as an office assistant; carried messages and parcels to the West End avenue home and to the Riverside drive apartment, the messages and parcels being for Mrs. Erlanger, and that he met her at both of these homes. He further testified that he went to the West End avenue home 200 times or more and to the Riverside drive home 50 to 100 times; that he went there on occasions when decedent was there, in both of these homes, and that he never knew contestant by any other name than Mrs. Erlanger. Recalled, he testified that the messages he took to 232 West End avenue and the Riverside drive apartment were not oral, they were letters inclosed in envelopes and addressed “Mrs. A. L. Erlanger,"'and the parcels that he took to West End avenue and to No. 175 Riverside drive, given him to deliver by Miss Donnelly or by Tommy Tucker, were the majority of them or a great number of them addressed “Mrs. A. L. Erlanger," and some were addressed “ Mr. A. L. Erlanger.”

Edward Fitzgerald, who worked in the financial department of the Erlanger Enterprises from June, 1925, to October, 1931, testified as to personal bills of Mr. and Mrs. Erlanger passing through his hands. He described the modus operandi for handling bills and various approvals put upon them (2169-2191); that there were bills that bore Mrs. Erlanger’s “ O K; ” that he went to West End avenue when decedent was sick to get him to sign checks and saw Mrs. Erlanger there; that he did relief work on the telephone; that he addressed her as Mrs. Erlanger; that he heard Mr. Pratt call her Mrs. Erlanger. He referred to an insurance bill where the name of the car was mentioned and “ Mrs. A. L. Erlanger ” was on the bill. It was in 1925 and the car was a Flint car; that Mr. Golding, his superior at that time, referred to her as Mrs. Erlanger; that the only persons who referred to her as Mrs. Erlanger were Mr. Dillon, Miss Donnelly, his wife, and Mr. Golding, in 1925. He testified that the Dillons and Miss Donnelly’s sister and he himself and Mr. Jorgensen always referred to her as Mrs. Erlanger, also the other operators on the board and Tommy Tucker. The witness was examined by Judge Erlanger on October 17, 1930, and the next day he was discharged. He testified that after his discharge he met George W. Lederer; Lederer said, “ Hello, Eddie,” whereupon Mr. Warner, a theatrical manager, told him that Eddie had been discharged, and Fitzgerald said that there was no reason given, but he believed that it was because he stated that he knew this lady as Mrs. Erlanger. Then “ Mr. Lederer said *17 to me, ‘ That is all anybody in the building knew her as.’ ” He was asked about Lederer’s testimony of having rung up on the day Erlanger died the Erlanger offices, and having talked with Eddie Fitzgerald and getting the address, of Mrs. A. L. Erlanger from him, and Fitzgerald said he does not remember; he is sure that he did not speak to Lederer on March seventh; when he says he did not remember, he is sure that he did not talk to him. Fitzgerald said that he did know there was a Mrs. A. L. Erlanger at No. 175 Riverside drive (6770).

Madeline 'Dillon, known in the Erlanger offices as Miss Donnelly, though she was married in 1926 to John J. Dillon, was Erlanger’s private secretary from February, 1918, up to the time of his death, shortly after which she was discharged by Judge Erlanger, one of the proponents; first met Mrs. Erlanger in 1921, in decedent’s home in West End avenue; he then was ill and directed her visit, to take some dictation; she recollected his saying, “ Miss Donnelly, this is Mrs. Erlanger.” She next saw Mrs. Erlanger at the “ Ben Hur ” opening, a screen production in the George M. Cohan Theatre; Mr: Erlanger was interested in the picture, which was a picturization of the Erlanger legitimate production of “ Ben Hur; ” she saw contestant with Mr. Erlanger on the left-hand side of the theatre about four rows from the rear; among the persons at the place where Mr. and Mrs. Erlanger sat, she remembers Vincent Astor and Henry L. Wallace. She next saw Mrs. Erlanger at the Knickerbocker Theatre in August of 1926, at a rehearsal of “ Honeymoon Lane.” Mr. Erlanger always rehearsed his own performances; this was before the try out of “ Honeymoon Lane ” at Atlantic City, at which performance several witnesses testified to having seen Mr. and Mrs. Erlanger. She next saw her at the opening of “ Happy-Go-Lucky ” in September, 1926; witness, who had just been married, was present with her husband; she greeted Mrs. Erlanger on that occasion; next saw her in June, 1927, in the West End avenue home. She had been in the hospital where she gave birth to a baby and the baby had died; at the"hospital she received a telegram from decedent, who, as the testimony already showed, had suffered a stroke on May 4, 1927, and was confined to his home from that time on until the latter part of July, when contestant took him to Atlantic City. Decedent’s telegram read, “ I mourn with you in your mishap, but thank God you are here and I pray for your early recovery. A. L. Erlanger.” On her call, Erlanger was in his bed and he got up while she was there; her husband was with her; he talked with her husband about going into the office (in his employ). He told her how very wonderful Mrs. Erlanger had been to him. She returned to *18 work on July fifth, but saw Erlanger again on July third. Mrs. Erlanger and Dillon were there; Erlanger addressed Mrs. Erlanger as “ Charlotte, darling,” and his “ Little Blue Angel.” She next saw Erlanger in the Shelburne Hotel at Atlantic City in August, 1927; this was the only time she saw him in August; she is positive she did not see Mr. Baron at Atlantic City in August of 1927. Erlanger had not been at his office at any time in August, 1927; she is a notary public; she stated she did not take any acknowledgments of Mr. Erlanger to any document in Atlantic City in August, 1927, nor did she see him sign any document in August of 1927. She was shown a paper purporting to have been acknowledged by her on the 15th of August, 1927, at the city of New York by Mr. Abraham L. Erlanger, but she denied that she saw him on the fifteenth.of August in the city of New York. She recognized her signature, “ M. C. Donnelly,” with the words “ notary public,” and stated that Baron brought that paper to her, and that it was for Baron that she acknowledged the paper; the paper which is dated August 15, 1927, and is a deed, “ Abraham L. Erlanger to Charlotte M. Fixel,” was received in evidence (Contestant’s Exhibit H-7). Her attention being called to the typewriting, “ Abraham L. Erlanger, unmarried, of 214 West 4®nd Street,” she declared that when she acknowledged the paper, the words, “unmarried, of 214 West 4®nd Street ” were not in that paper, but that where the words, “unmarried, of 214 West 4%nd Street,” now are were the words, “ 232 West End Avenue.” Her attention was called to the name of grantee at the beginning of the instrument, viz., “ and Charlotte M. Fixel, of Hotel Shelburne, Atlantic City, New Jersey,” and she was asked whether any part of that was written in there at that time (the time of her acknowledgment), and she replied “ Absolutely not; it was a blank space.” It was conceded that this handwriting of the name and address of the grantee is Mr. Baron’s; the rest of the face of the paper is in typewriting. She said that Mrs. Erlanger at the time of the acknowledgment on the fifteenth was living with Mr. Erlanger at No. 232 Wefet End avenue; they were both at that time stopping at the Hotel Shelburne at Atlantic City, and Mrs. Erlanger did not have a residence at the Hotel Shelburne, Atlantic City. The Dillons were guests of Mr. and Mrs. Erlanger on their visit at the Shelburne; dined in their suite. When they arrived at the hotel, they had asked to be announced at the desk to Mr. and Mrs. Erlanger; on going to the suite they had luncheon there. Dillon remained with Mr. Erlanger, and Mrs. Erlanger and herself went on to the boardwalk; saw them again on Sunday; saw Erlanger when he returned to the office; in September she saw Mrs. Erlanger at the opening, of the Erlanger Theatre. From *19 the New York office, she spoke to Mrs. Erlanger every morning at Atlantic City. Erlanger had told Dillon to call him every morning at ten o’clock and give Mrs. Erlanger all the receipts of the various theatres and any business of importance. Direction for the telephonic connection for these messages was given by Dillon, who would say to Tommy Farrell, “ Get me Mrs. Erlanger in Atlantic City;” or “ Get me Mrs. Erlanger at the Shelburne.”

Mrs. Caroline D. Barnett, a daughter' of the late Charles Frederick Daly, vice-president, Durant Motors Company in 1923, identified her father’s signature and his handwriting .in a certain letter (Contestant’s Exhibit P-7). An operator’s license card (Contestant’s Exhibit Q-7) and his check (Contestant’s Exhibit R-7) were marked in evidence. The Daly letter, dated April 5, 1928, is addressed to “ My dear Mrs. Erlanger ” and refers to the inclosing of an operator’s certificate of registration which reads, among other things, “1928-1924” and certifies that the “ person named below has been licensed to operate motor vehicles,” etc., and the name is given, “ Charlotte Erlanger, 282 West End Ave.;” the envelope is addressed to “ Mrs. A. L. Erlanger.” Mrs. Barnett visited at the West End avenue home with her mother and her father, the latter introducing her to Mr. Erlanger, and Mr. Erlanger introducing her and her mother to Mrs. Erlanger. This was six or seven years ago, which would make it 1924 or 1925.

Mrs. Mary Stoy, and her daughters, Mrs. Elizabeth S. Conger, Mrs. Caroline S. Stehle, and Mrs. Dorothy McCulloch, together with their husbands William H. Conger, Jr., Dr. Frederick Stehle, and Frank McCulloch, gave testimony showing that the parties held themselves out as husband and wife and as Mr. and Mrs. Erlanger dining the years which we have styled the earlier period of this record. Their testimony is important for several reasons, particularly because they proved to be highly credible and dependable witnesses, and some of, them participated in important episodes. The Congers and the Stehles together with Mrs. Stoy, have been for a number of years residents in Atlantic City, while Mr. and Mrs. McCulloch have lived in New York city. The acquaintanceship between the contestant and Mrs. Stoy and her daughters runs back to 1906; her daughter Dorothy (Mrs. McCulloch) was an actress and participated in various plays with contestant. Through this contact contestant met and visited with Mrs. Stoy and her family, and the friendship between them all ran over a term of years. All of these seven witnesses testified as to their meeting Mr. and Mrs. Erlanger in 1920 at the Apollo Theatre, Atlantic City, where “ Two Little Girls in Blue ” was being given the initial performance. The first of this group called to the stand was Mrs. Elizabeth S. Conger. *20 She proved to be a very impressive and dependable witness, in her testimony both direct and cross, the latter being very exhaustive; it was about the year 1920 that Mrs. Conger first knew the contestant as Mrs. Erlanger; she had previously known contestant by the name of Charlotte Lesley; heard people speak to Mrs. Erlanger at the Shelburne at the desk of the hotel and in the dining room; she was always addressed in the hotel as Mrs. Erlanger. She and her husband and her son visited Mr. and Mrs. Erlanger at their home in West End avenue; the witness’ mother had already been visiting there. She, her husband and son remained there with Mr. and Mrs. Erlanger from Saturday until Monday. This was the winter of 1922 or 1923. The housekeeper addressed the contestant as Mrs. Erlanger or “ Madam.” They took meals at the house, and Mr. Erlanger was present at the meals; sat at the head of the table; witness and Mr. Conger sat on one side; her mother and her son sat on the other, and Mrs. Erlanger at the other end of the table. Mr. Erlanger called her “ Darling,” sometimes “ Charlotte ” or “ Lottie.” She always called him “ Darling,” once in a while “ Bunny.” The Congers, their son and Mrs. Conger’s mother slept there. When the witness left, she left with her husband and her son; her mother remained. In reference to the first meeting at the Apollo Theatre she said she with Mrs. Erlanger and her mother, Mrs. Stoy and her sister, Mrs. Stehle, dropped in at the Apollo Theatre in the afternoon; Mrs. Erlanger wanted to know if Mr. Erlanger was coming back to the hotel for dinner. A dress rehearsal of “ Two Little Girls in Blue ” was on; Mrs. Erlanger sent word that she was at the back of the theatre, and Mr. Erlanger came back; she introduced him, saying, “ Darling, I want you to meet my family; you have often heard me speak of them;” and she said, “ This is my husband,” introducing her mother, Mrs. Stoy. Erlanger invited them to attend the opening of the show in the evening, and they did; the party being made up of Mrs. Stoy, the Congers, the Stehles and Mr. and Mrs. Erlanger. Mr. Erlanger conducted them to a box, and then went back stage, coming out between the acts to visit with them. Mr. arid Mrs. Erlanger had visited Atlantic City six or eight times from the time she first met them; contestant was always addressed at the hotel as Mrs. Erlanger; next meeting was at a performance by Ed Wynn in “ The Perfect Fool,” and the third meeting was still two years later, at the same theatre, at the presentation of Eddie Dowling in “ Honeymoon Lane.” The rest of her direct and cross-examination will be referred to further on, particularly the part bearing upon events in the latter part of 1927.

Her husband, William H. Conger, Jr., confirmed her testimony, especially the meeting of the Erlangers in the Apollo Theatre in *21 1920, at the opening of “ Two Little Girls in Blue ” and the visit subsequently in the winter of 1922 and 1928 with the Erlangers at their West End avenue home; the incident of the party attending the performance of Ed Wynn two years later and the attendance at the performance of “ Honeymoon Lane ” two years afterwards. Mr. Conger has been practicing the profession of law in the city of Philadelphia since 1905; he is vice-president of Integrity Trust Company of Philadelphia, and fives in Atlantic City; first met contestant at the home of his wife, just prior to their marriage in 1913; first met Erlanger in Atlantic City, in the lobby of the Apollo Theatre, at the opening of “ Two Little Girls in Blue;” his wife, his mother-in-law, his brother-in-law, Dr. Stehle, and his wife, Caroline Stehle, were with him. Mrs. Erlanger came in and she introduced the party to Mr. Erlanger, using the words: “ ‘ I want you to meet my husband,’ words to that effect.” The next meeting he placed about a year or two later at the Apollo Theatre, where he and his family were guests of Mr. and Mrs. Erlanger at the Ed Wynn show, “ The Perfect Fool.” The party all sat together and Mr. Erlanger sat with them. Conger described the visit of himself and his family at the Erlanger home in the winter of 1922 and 1928. He was not sure whether this visit antedated the meeting at the Apollo Theatre at the opening of “ Honeymoon Lane ” or was subsequent to that event; described his driving with his wife to the Shelburne Hotel and taking Mr. and Mrs. Erlanger in his car to the theatre. During the party he addressed Erlanger as Mr. Erlanger, and the contestant as Mrs. Erlanger. At the end of the performance Erlanger asked him if he would see that Mrs. Erlanger was taken to her hotel, and he drove her to the hotel, saw her in, witness’ wife and mother-in-law being with them. On the visit in 1922-1923, witness, his wife and son, arrived at the Erlanger home on Saturday and remained until Monday, his mother-in-law, Mrs. Stoy, had been visiting there. During the visit, in the course of conversation, witness addressed contestant as ■ Mrs. Erlanger and “ Charlotte,” it all depended to whom he was talking. He thus addressed her in the presence of Erlanger, and Erlanger, to the servants who served at the table, spoke of contestant as “ Mrs. Erlanger ” and “ Darling ” and things of that sort. Contestant addressed Erlanger as “ Bunny ” and as “ Darling.” He described their attitude, demeanor, method of address, and so on, toward each other as that of husband and wife who thought a great deal of each other (176) and were very devoted to each other, the witness stating: “ It was rather a devoted attitude and I should say, in fact, very much so.” He detailed the conversation with Erlanger in the library of his home, where wills and deeds of trust were discussed, the witness *22 stating: “ He had been informed, it seemed, I was supposed to know something about those things, and he talked to me rather freely about estate settlements, about the demerits and merits of deeds of trust over wills, and so on, and we had quite a conversation that evening * * He did not recall the exact words, but stated: “ He said in these words that he feared that if he did not make some provision in his lifetime in addition to his will, his brother might make trouble for her after his death.” The four meetings described by the witness were the only times when he met Erlanger. In cross-examination he told how contestant’s stage name was Charlotte Lesley,' that she appeared in David Warfield’s “ The Auctioneer,” that he met her through his wife, that his wife received a letter from contestant in 1918, 1919, or 1920. He stated the first time he heard her called by the name of Erlanger was at the Apollo Theatre (the letter which was received, in which she was described as married, was probably about 1919, but he does not know). He is not so sure of the time (202). “ He would say so, 1919, for want of better * * she had never mentioned the name to witness, that is, not prior to the meeting at Atlantic City. He did not know then, nor did his family; so far as he knew, Miss Fixel did not know him. Interrogated about the friendship of his wife and her family with the contestant, the witness described having met her father and her mother (206). He did not know her near relatives, but had heard her speak of them and of an uncle, Judge Levintritt. He heard contestant speak of him many times. He reiterated his description (212) of the introduction to Erlanger by Mrs. Erlanger of his wife’s mother, his wife, himself, Dr. Stehle and his wife, and declared that she presented them to Mr. Erlanger, to her husband, saying, “ Meet my husband,” or some words to that effect. In cross-examination he could not recall the exact words, but gave his impression of the conversation with Erlanger about wills and trusts, and' declared it was along the lines that he wanted to make adequate preparations for his wife. He said that Erlanger had several ideas: “ He knew that I knew something about wills and deeds of trust, and I suppose that he was trying to get any information from me that he could; I was not his lawyer or counsel; he just opened up and asked me. That was all, and I suppose that was on his mind; that was all. * * * He wanted to make provision for Mrs. Erlanger and then he felt he ought to make some provision in his lifetime,” in addition, “ by a deed of trust, something that could not be affected by any squabble or fight.” Erlanger, he said, did not say that he expected a squabble or a fight, “ but he feared one.” Erlanger did not say what he had done", as the witness recalled it, but he wanted to provide for her. Questioned as to what Erlanger asked him in the nature of advice, *23 and the witness replied: “ For example, by a deed of trust you can make an estate settlement which cannot be well attacked.” He told Erlanger in substance that if he wanted to provide for the contestant he could do so either by a will or by a deed of trust or by both, and this seemed to please Erlanger. Outside these four occasions that the witness described when he met Erlanger, he saw them together on the boardwalk many times.

Mrs. Carrie Stoy, mother of Mrs. Conger, Mrs. Stehle and Mrs. McCulloch, a lady of seventy years of age, who had been married to her husband nearly fifty years when he died, knew contestant as Charlotte Lesley, her stage name. The friendship came about through her daughter, Dorothy McCulloch, having been in the same plays with contestant as an actress. She remembered going to the Apollo Theatre with Mrs. Conger and Mrs. Stehle and Mrs. Erlanger; she recalled the latter sending word back to Mr. Erlanger, and he came out, and contestant said, “ Dear, I want you to meet my family;” and contestant referred to him as her husband. Her testimony about the make-up of the party and where they sat at the performance, etc., confirmed Mr. and Mrs. Conger’s. She described the next meeting with Erlanger at the Ed Wynn show, meeting Mr. and Mrs. Erlanger in the lobby; also her visit at the Erlanger home in West End avenue; arrived at the house on Tuesday and went home Wednesday a week, staying at the house during all that time. Erlanger was away on a trip, but came home before she left; she and the Erlangers dined at the same table; Erlanger addressed contestant as “ Darling, very affectionate,” and she addressed him as “ Dear ” and “ Dearest.” When asked about the behavior of Mr. Erlanger towards Mrs. Erlanger, and Mrs. Erlanger towards him, she answered: “ Very beautiful,” and as being man and wife. The housekeeper addressed her as Mrs. Erlanger. She described meeting Mr. and Mrs. Erlanger on the boardwalk in 1927. This testimony will be reviewed when that particular epoch is taken up.

Caroline S. Stehle knew contestant by the name of Mrs. Erlanger since 1920; met Erlanger at the Apollo Theatre; she described the visit at the theatre and the meeting of Erlanger. Mrs. Erlanger introduced him. They attended the theatre in the evening, her husband, her sister’s husband and her mother being in the party; Dr. Stehle and Mr. Conger were then presented to Mr. Erlanger. The next time she saw Mr. Erlanger was at the performance of “ The Perfect Fool;” they met in the lobby of the theatre; saw them next when they were down at Atlantic City for a week-end; she again described the introduction at the Apollo Theatre and stated: “ Mrs. Erlanger said to us, ‘ I want you to know my husband,’ and she said to Mr. *24 Erlanger, ‘ I want you to meet my family.’ ” She described the theatre party at the Ed Wynn production, “ The Perfect Fool.” She had known that contestant was Mrs. Erlanger since she, the witness, first met Mrs. Erlanger in 1920. The witness made it clear as to when she had been told by her sister of “ Mrs. Erlanger;” it was a previous winter to the time of the performance in the theatre. That would be the winter of 1919-1920; she could not give the month.

Dr. Frederick Stehle, husband of the former witness, first met contestant about 1906-1907; knew her as Charlotte Lesley then; first knew her as Mrs. Erlanger in Atlantic City in 1920; described the Apollo Theatre meeting at the box party and the introduction; Mrs. Erlanger presented him (1597), saying: “Meet Mr. Erlanger, my husband.” He described the other meetings with the Erlangers, that is, at the opening of Ed Wynn’s show and the opening of “ Honeymoon Lane,” and the members of his family who were present at these performances.

Dorothy McCulloch first met the contestant in 1906 at rehearsals of “ Sergeant Brue,” both being members of that piece, produced by Mr. Dillingham. She described her friendship and companionship with contestant over a number of years, which continued until 1912; the witness was married in 1914; met Mr. Erlanger in 1920 at the Alamac Hotel, Atlantic City; Mrs. Erlanger introduced her to him; saw her three or four times on that occasion of the Erlangers’ visit to Atlantic City; when Mr. Erlanger came in to their suite at that hotel, came in from rehearsal to the suite, Mrs. Erlanger said, “ Darling, meet Dorothy, Dorothy, this is my husband now.” And Erlanger said, “ Oh, yes, I recall you, Dorothy.” That evening she went to the theatre with them and saw “ Two Little Girls in Blue,” meeting the other members of her family there; next saw Mr. Erlanger in New York at his residence, No. 232 West End avenue, a month after she came here, early in 1920; used to call at the West End avenue house two or three times a week; always kept up this habit of calling at the residence of the Erlangers, up to the time of his demise; likewise she called on them at the Ambassador Hotel during the period they were there, and at No. 175 Riverside drive, possibly two or three times a week. When her husband was working for Erlanger they dined there once every two weeks. That was in 1923, her husband having worked for Erlanger for about a year, and when dining with them Erlanger addressed contestant as “ Darling,” sometimes “ Lottie,” “ Dear,” and contestant addressed him in similar terms; no other lady was in the house; there was a housekeeper and a valet-butler. Witness would on occasions go there and ring the bell, and when someone answered the bell she would *25 ask for “ Mrs. Erlanger.” She heard the butler address Mrs. Erlanger. He addressed her as Mrs. Erlanger and Madam; and the housekeeper addressed her in the same manner. She and her husband called her Charlotte. Witness went to stores where she did her marketing, and to different department stores, and contestant was always addressed as Mrs. Erlanger. That has been continuously so when they were together since 1920. She never heard her addressed in any other way except as “ Mrs. Erlanger,” or by people who called her “ Charlotte ” or “ Lottie.” During the period of Erlanger’s last illness Mrs. McCulloch would go over there and stay for luncheon, getting there at possibly ten o’clock. On these occasions she spoke to Erlanger only once, in his bedroom when he had first taken to the bed. Witness said about Mrs. Erlanger: “ She waited on him constantly, she gave him his medicine, she made broth, she went into the kitchen and made the broth herself, she prepared little delicacies; she saw and held his hand, she was constantly being called for by him; on those occasions when he called her, he called ‘ Darling,’ Mrs. Erlanger dropped whatever she was doing and ran;” she was there in the apartment the night before Erlanger died, leaving about half-past ten or eleven o’clock; she came back the same night about half-past twelve or one, and was there when Erlanger actually passed away. “ The nurse came to Mrs. Erlanger and said he thought it would be only a matter of minutes. It was about half-past five in the morning; and Charlotte hurried into his room, and sat on the edge of his bed; she put her arms around his shoulders, and she was crying very bitterly, and begged him to speak to her, and the nurse shook his head, said it was no use, he could not even hear her; she patted his shoulders and cheeks; she kept crying, asking him to speak to her, and the nurse came over and just laid him back on his pillows.” When he passed away, the nurse was there and the housekeeper and the butler, Mrs. McCulloch and Mrs. Erlanger. The next thing she recalled was, “Mrs. Erlanger telephoned his sisters, she called the number and someone answered and she said, ‘ Your brother has just passed away,’ and then she dropped the telephone and called the nurse and said, ‘ You tell her,’ and the nurse gave the message.” Witness knew contestant’s father and mother from the time that she knew her; identified the ring marked Exhibit V, and said she saw that ring on Mr. Erlanger’s finger; he wore it on his finger; it belonged to Mrs. Erlanger’s father; she went to Tiffany’s with Mrs. Erlanger at the time she had the initials changed to the initials it now has on it, “ A. L. E.,” which initials replaced Mr. Fixel’s. She identified Exhibit F and stated that she saw Mrs. Erlanger wear it. She knows E. G., the other ring; said she saw Mrs. Erlanger wear that *26 ring; about 1925 or 1926, somewhere around there, she first saw her wear the ring Exhibit F, and the other ring, Exhibit G, she saw when they first moved into No. 175 Riverside drive; the ring was new then, and since the time that she first saw this ring, Exhibit G, she always saw Mrs. Erlanger with both of these rings on her finger. In cross-examination the witness reiterated that she met the contestant in 1906, both being in the play, “ Sergeant Brue.” The cross-examination took the witness through the various plays in which they participated and into the various places where contestant lived during those years, her father’s and her mother’s home and other places. Among the plays in which they performed were “ The White Chrysanthemum,” “ Lil ’Mose.” Witness stated that during the rehearsals they always lived with Mr. and Mrs. Fixel, contestant’s father and mother (3165). Other plays were “ Pocahontas,” “ Stubborn Cinderella;” during the run of the latter play they lived right next door to contestant’s mother and father, the latter living in a boarding house. “ Modest Susan ” was another play; witness married in 1914, but remained on the stage for two years thereafter; she and her husband lived in Atlantic City from 1916 to 1920. Correcting the former statement, the witness stated that she began visiting the contestant in West End avenue in the latter part of 1920; they dined frequently at West End avenue; saw contestant in Garden City in the summer of 1922; she and her husband dining there a few times; she visited the contestant at her summer home at Lawrence in the summer of 1923; a rented house; Erlanger spent week-ends at the home where contestant lived in Lawrence. During the summer of 1924 the witness said the contestant lived at Cedarhurst while Erlanger lived at Lawrence. She described the various domestics employed in the West End avenue house from 1920 on (3182, 3183, 3184); witness told how she returned to the Riverside drive apartment after she had left there, the night before Erlanger died; Mrs. Erlanger telephoned her and told her the doctors had just left; she was frightened and crying and begged her to come over. She placed the time of her going with contestant to Tiffany’s to have the initials on her father’s ring changed at 1921-1922, being unable to state definitely which year. She described minutely what took place at Tiffany’s (3195) and the colloquy between the contestant and the man. at Tiffany’s repair department, to whom she said that the ring in question was an engagement ring from her mother to her father. Both had died before 1920; her mother died in 1919 and her father the year before. In redirect witness stated she and her husband were present when they dined with the Erlangers at Lawrence and at Cedarhurst; during those summers they took many drives with Mr. and Mrs. *27 Erlanger. Witness identified a photograph (3541) which was presented by Erlanger to her and her husband, which was received in 1928, just before her husband left the employ of Erlanger. It was given to Mr. McCulloch, but as he went to inscribe it Mr. Erlanger said, “ Well, I must include Dorothy, too.”

Frank McCulloch, the husband of the last witness, had first met Erlanger in Cincinnati, Ohio, at the Grand Opera House, where he was employed as a box office boy. He next met him in 1920, in the Apollo Theatre, at the opening of the show previously described. He met Mrs. Erlanger eighteen years ago, as Charlotte Lesley, but the meeting in the Apollo Theatre in 1920 was the first time that he met her as Mrs. Erlanger. He worked with Erlanger in the preparation of the production of “ Ben Hurhe dined with Erlanger at West End avenue house, sometimes once in a month. Mrs. McCulloch was always with him. Erlanger addressed Mrs. Erlanger as “ Lottie ” or “ Dearest ” or “ Darling ” and she addressed him as “ Dearest ” or “ Bunny.” Witness regarded the demeanor of each toward the other absolutely as that of husband and wife.. The first time prior to the Apollo Theatre incident when he knew of the contestant as Mrs. Erlanger was in the early part of 1920; during 1928, when employed by Erlanger, he knew her as Mrs. Erlanger (3212).

Albert H. Woods, theatrical producer, knew Erlanger for thirty years, saw him frequently, had business relations with him; identified the contestant; he was introduced to her by Erlanger as Mrs. Erlanger; on the boardwalk in Atlantic City he saw Erlanger in a chair car, the latter called him over and they talked, and Erlanger introduced him to Mrs. Erlanger. He fixed the time as either 1926 or 1927. In addition to meeting Mr. and Mrs. Erlanger in Atlantic City in 1926 or 1927 he met them in 1928 in the city of Paris. He had seen an ad. in the New York edition of the Paris Herald (Contestant’s Exhibit H-3), a full page ad. of Mr. Erlanger’s theatre, which let him know that he was in Paris; he rang up the Hotel George V and called at the hotel and saw Erlanger and Mrs. Erlanger; had announced himself at that hotel by a card sent up to “ Mr. and Mrs. Erlanger ” (Contestant’s Exhibit G-3); on cross-examination he stated his relations with Erlanger were wonderful, were very close, that they were never social, but only in business; had only been up to see him once or twice; had had extensive and intimate business associations with Erlanger in joint productions and in the booking of Wood’s attractions; he stated that he did not think he ever met contestant before meeting her at Atlantic City; that he knew nothing about her. Witness knew Erlanger’s wife, having met her two or three times up to the time of the divorce in 1911.

*28 Edward Cantor, widely known in the musical and moving picture world as Eddie Cantor, knew Erlanger fifteen or sixteen years, and in the summer of 1925, when he was abroad, he met Erlanger in front of a theatre in London. This was the first time he met Mrs. Erlanger; he and his wife were going to a theatre this particular night and in front of the Gaiety Theatre he ran into Erlanger coming out of an automobile, and the latter introduced him to Mrs. Erlanger, Erlanger saying, “Eddie, I want you to meet my wife, Mrs. Erlanger.”

Dr. Joseph C. Marshall, of Atlantic City, met Mr. and Mrs. Erlanger in July of 1927. He is a graduate of the University of Pennsylvania and a practicing physician for thirty-one years in Atlantic City. He knew the contestant under the name of Mrs. Abraham L. Erlanger. When he met them Baron, Erlanger’s attorney, and a valet in attendance on Erlanger were in the party. Of this party he stated Baron met him first; that Baron said Mr. Erlanger would be bis patient, saying, “ The details of the case I would, be informed of by Mrs. Erlanger,” who had entire charge of him and knew about the case. He had not met Mrs. Erlanger before. After inquiring at the office of the Shelburne Hotel he went to the Erlanger apartment, and there he was introduced to Mrs. Erlanger by Mr. Baron; then he was introduced to Erlanger; Mrs. Erlanger was present. He treated Erlanger on July 27, 1927, and saw him each day up to and including September 20, 1927, seeing him once each day during that period. He met them socially, dined with them in their apartment, and testified that decedent referred to Mrs. Erlanger always as “ Darling ” or “ Mrs. Erlanger.” When he addressed her he addressed her as “ Darling.” If he referred to her he referred to her as “ Mrs. Erlanger.” He said he and Erlanger became good friends, that the friendship continued up to his death; that at first he addressed the decedent as Mr. Erlanger, and when better acquainted decedent said, “ I wish you would call me Pal, as we were pals after September 20th.” He treated him personally on November 1,' 2, S, 4 and 5 of that year. Erlanger told him the next day (264) that Baron was bis lawyer. Dr. Marshall further stated (266) he believed when he wrote the communications that she was Mr. Erlanger’s wife; the food of the dinner was always ordered, that which he preferred, she always personally took the chair from the waiter and placed it under him, and fixed the cushions in it, cut up his meat for him and his food; he was incapacitated partly for performing that act, and she watched over him in such a careful manner that it could not help but be noticeable to a stranger, and that was continued throughout the period of the dates that he had already mentioned.

*29 Andre Fray, a butler and valet, worked at the West End avenue house in September, 1923. From September, 1923, to April or May, 1924, packages and mail came to the house addressed to Mrs. Erlanger. Mrs. Erlanger gave the orders in the household. He took trips with Mr. and Mrs. Erlanger to French Lick, Columbus, Chicago and New Haven. At the hotels where they stopped she was addressed as Mrs. Erlanger, and she was so addressed in the presence of Mr. Erlanger. He heard others address her as Mrs. Erlanger. Decedent often inquired of him for Mrs. Erlanger. He saw letters addressed to her as Charlotte Lesley.

Margaret M. Anderson, a cook for Mr. and Mrs. Erlanger from April until October, 1925, at the West End avenue home, testified that Mrs. Erlanger engaged her; that she saw Mr. Erlanger going in the morning and coming in the evening; that he and she slept there; that he addressed her as Mrs. Erlanger; that other persons who came to the house addressed her as Mrs. Erlanger and that she addressed her as Mrs. Erlanger, and that if he asked for the contestant he asked for Mrs. Erlanger; that they ate together.

Charlotte Heitmann, the lady’s maid, met Mr. and Mrs. Erlanger October 2, 1926; became the personal maid and was employed for about seven months; introduced to Mr. Erlanger by Mrs. Erlanger. He said, “ Be very nice to Mrs. Erlanger so she will be very nice to you;” he addressed her as Mrs. Erlanger. Mr. Erlanger said, “ Please tell my wife to hurry.” On the telephone Mr. Erlanger said, “ Call Mrs. Erlanger to the telephone.”

Albert Knipping, a cook and a waiter, entered Erlanger’s employ March 9, 1926, was there up to January 27, 1927; knew the contestant as Mrs. Erlanger; he did the cooking and served on the table. Remembered two parties there in 1926, the first on Thanksgiving Day, the other December 9, 1926, her birthday. He was not in their employ in 1925. Described Baron calling for the Thanksgiving Day party, bringing a package of candy; those present at the party were Mr. and Mrs. Erlanger, Mr. Baron and Mrs. Clarke. He described how he made a special cake with a white icing and chocolate letters; on the top of the cake was the inscription: “ Western Union, to Mrs. A. L. Erlanger, 232 West End Avenue. Happy Birthday, Albert;” " Albert ” being himself. He said the cake was cut after it was shown to everybody. Baron said to him, “ This package belongs to Mrs. Erlanger for her birthday.” And he brought it up to the library himself. In cross-examination he described how he would call Lancy Johnson and tell him either Mrs. Erlanger does want the car or does not want the car; he described callers at the West End avenue house, he included Mr. Baron, Dr. Glass, Miss Glass, Dr. Glass’ son, and wife and baby, Mr. and Mrs. Denni, *30 Mr. and Mrs. Evans, Miss Wells (Miss Bothwell), Mr. Mitchell Erlanger (on one occasion), Mr. Bergman and the chauffeur, also Mr. and Mr. McCulloch, and trades people. (At the time of his testifying in this trial, he was employed by Mr. and Mrs. Dillon.) They did not visit the West End avenue house while he was employed there. He recalled contestant’s birthday, December ninth; it is the same date as the birthday of his own mother in Germany; at the birthday dinner, Mr. and Mrs. Erlanger were present, and Mr. Baron; he described how he showed the birthday cake to each of those present, and he remembered Mr. Erlanger reading it out loud, “ Western Union Telegram to Mrs. A. L. Erlanger, 232 West End Avenue, Happy Birthday, From Albert.” He had made this cake without the knowledge of the contestant. He described another dinner party in March of 1926, at which Mr. and Mrs. Denni, Mr. and Mrs. Evans and Miss Bothwell were present. He worked during the summer at the West End avenue house, during June and July and August; the contestant was there once a week.

Nathan Jacobs, in the hotel business at Lakewood, told of Mr. and Mrs. Erlanger coming to the hotel in January of 1994- as guests. Mrs. Erlanger registered for both; Mr. Erlanger was standing right by her side as she registered. “ Mr. Erlanger introduced me to her as Mrs. Erlanger;” and they were assigned to room 200 in this Lakewood Hotel; Mr. Erlanger was called to the telephone and was somewhat irritated; he had been paged for a phone call, came out of the booth a little angry and said, “ That phone is for Mrs. Erlanger, connect it up to her room.” During this period Mrs. Erlanger was referred to by no other name than Mrs. Erlanger.

Irving Ulick, a room clerk from 1920 to 1924 at the Lakewood Hotel, later known as the Carasaljo Hotel, stated that reservations at the hotel had been made for Mr. and Mrs. Erlanger and that Mrs. Erlanger stepped up to the desk and registered as Mr. and Mrs. Erlanger, and that he assigned them to a room, and that was the first time he met them, sometime in February of the season of 1994- They remained there about five or six days, and to some extent they commingled with other guests in the house. He noticed Mr. Erlanger sitting to the left of the registration desk, and Mrs. Erlanger would assist him to that chair, prop him up and make him as comfortable as possible; he seemed to be ill at the time. He saw Mr. Erlanger introduce Mrs. Erlanger to the receiver, Arthur Gorman Gallagher. He saw Mr. and Mrs. Erlanger in conversation with all these people that he has mentioned.

Margaret M. Reid (deposition) of Port Huron, Mich., visited the Shelburne Hotel, summer of 1927; family consisted of a son, niece and herself; she is a widow; first met Mr. A. L. Erlanger at *31 French Lick Springs Hotel in 1924, the year after her husband’s death; met him with Mrs. Erlanger; became acquainted through Charles Dillingham; met Mr. Erlanger for four seasons with Mrs. Erlanger. She further testified: “ Yes, Mrs. Erlanger was always with him. * * * Once every fall and once in the spring. They were there on both occasions during five different years.” She was there at the hotel for three weeks on one visit, and not less than two weeks.on the other visits; when Mr. and Mrs. Erlanger were there spent most of the afternoon each day with them, most of the afternoon; she addressed her as Mrs. Erlanger and she was addressed as Mrs. Reid; she stated: “ I think he called her ‘ Charlotte ’ most of the time, in very fond terms as ‘ Dearie ’ and ' Honey.’ She addressed him as ‘ Abe.’ * * * There was a great deal of devotion between both parties, so much so that it was very remarkable. He often told me that he had known Mrs. Erlanger when she was a little girl with curls, and held her on his knee.” He was ill the past two seasons, 1927 and 1928; in 1929 they were in Europe; during the period of his illness he was strictly confined to his room, “ except at dinner time he was wheeled in his wheel chair to the dining room for dinner at four o’clock in the afternoon.” About his coming downstairs and attending at the dining room, the witness said Mrs. Erlanger went in only with him for meals, and had her other meals in her room; “ she was never seen in the dining room only with Mr. Erlanger.” She knew Mr: and Mrs. Erlanger for five years; never heard her addressed by any other name than Mrs. Erlanger. Mr. Erlanger addressed her usually as “ Sweetheart ” or “ My dear.” As to writing to Mrs. Erlanger, she said, “ always when they were in Europe and all the time they were at their old address in New York, before she moved into her new home. She described her new home to me while at French Lick,” that Mr. Erlanger had made her a gift of. Asked if she received letters from the woman or a representative since March seventh, she said: “ I received cards and letters, mostly cards from Europe, where Mr. Erlanger went for treatment, giving me the condition of his health, and their love; never met Mr. Erlanger at any other place than French Lick; met her in Chicago at the Blackstone Hotel and had luncheon with her. Mr. Erlanger was there with her; this had been arranged by Mr. Erlanger that we should have luncheon together.”

Mrs. Ethel Morganroth knew the parties; made their acquaintance at the Carasaljo Hotel, Lakewood, N. J.; was introduced to them by her uncle, Dr. Glass; saw them once or twice a week at their home in West End avenue; visited there about seven years; dined there very frequently with Mr. and Mrs. Erlanger; dined there with others, such as Mr, Charles B, Dillingham, Mr. Saul Baron, Senator *32 and Mrs. Van Husen, Sir William Wiseman, and a few more people; recalled an occasion in December of 1924 when she dined with them, when reference was made to a ring, and the ring exhibited; remembered one person definitely who was there, and that was Mr. Dillingham, because he attended most of the dinner parties that she attended and was there on the occasion that she referred to; it was a birthday dinner party, Mrs. Erlanger’s birthday; Mrs. Erlanger said that she had received a marriage band; it had come from Tiffany’s; they were all sitting at the dinner table; Mr. Erlanger was present; the ring was shown and they were looking at it. It was a diamond marriage band. It was shown to the other guests. She identified Exhibit F as the ring in question. Erlanger mentioned the fact that he had purchased it at Tiffany’s. She attended a dinner party that was given by Mr. Dillingham; Mr. and Mrs. Erlanger were present, and there were other guests there, and Mrs. Erlanger was addressed by the people present as “ Charlotte ” or “ Mrs. Erlanger,” or “ Dear ” or “ Darling,” Erlanger referred to her as “ Dear ” or “ Darling.” She attended the performance of “ Ben Hur ” in the George M. Cohan Theatre; Mr. and Mrs. Erlanger were there; she recalled the part of the house in which they sat,, toward the back on the right side of the theatre. She spoke with them during the performance, and other people spoke to them; she heard Mr. Erlanger introduce her absolutely as Mrs. Erlanger; there were many people. On cross-examination she said that her uncle, Dr. Glass, was Mr. Erlanger’s physician for years; Dr. Glass has a daughter, Ethel; the introduction by her uncle, Dr. Glass, at Lakewood was, “ Meet Mr. and Mrs. Erlanger, my niece, Miss Kuhn.” During the cross-examination she referred again to the ring; she said, “ Well, I said that I should like to see the birthday gift.” “ Mrs. Erlanger showed us the ring, and those persons that were present at the party looked at it and said it was very beautiful; and Mr. Erlanger said that he had purchased it at Tiffany’s and naturally there were various other comments made about its beauty.” At the “ Ben Hur ” performance she remembered lots of people coming up to speak to them. (Note. Questions were addressed to Baron and Dillingham directly stating that this witness said that Erlanger had said to contestant at the birthday dinner, “ Why don’t you show them your wedding ring? ” This witness did not so testify.)

Edward M. Graffin, of Tiffany’s, with that firm over forty years, was shown Exhibit F, which he identified as a Tiffany ring from the name of Tiffany & Company on the ring and by what is called the scratch number on the ring, which he deciphered as number 19631. He produced from Tiffany’s files the original charge slip *33 for the ring, dated “November 29, 1924, diamond ring, $830.00, number 19631 ” (Contestant’s Exhibit R-2), and the receipt for the ring dated December 1, 1924 (Contestant’s Exhibit S-2), the signature “A. L. Erlanger ” on the receipt being conceded by the proponents to be that of the decedent; the original bill for the ring dated December 21, 1924 (Contestant’s Exhibit T-2), and the check “A. L. Erlanger” March 15, 1925. “A. L. Erlanger, special,” by which payment was made for the bill dated December 31, 1924 (Contestant’s Exhibit U-2). He produced Erlanger’s charge slips from October 22, 1920, to December 29, 1927; the last charge slip produced was September 29, 1927, stamped “ Paid, January 15, 1928.”

Mrs. Amy Ashmore Clark, the advertising director, Junior League Magazine, first met the decedent either in 1921 or 1922 at the opening of “ The Wandering Jew ” at the Knickerbocker Theatre. Mr. and Mrs. Erlanger called for her at her house in a car to take her to the theatre, and the chauffeur phoned upstairs that Mr. and Mrs. Erlanger were waiting downstairs; that later at No. 175 Riverside drive their demeanor was the same as it was at West End avenue house. They addressed each other most affectionately; visited at No. 232 West End avenue and dined with them on one occasion of Mrs. Erlanger’s birthday party; that Mr. Baron was present; dinner was served by the butler; heard her addressed as Mrs. Erlanger and Darling or Love. Addressed her as Mrs. Erlanger one day at dinner when Charles Dillingham was present; the housekeeper addressed her as Mrs. Erlanger; every meal she was addressed by the butler as Mrs. Erlanger; he addressed her as Darling or Love; she addressed him as Darling always; throughout a meal at which Mr. Dillingham was present Mrs. Erlanger was addressed by the butler as Mrs. Erlanger; heard the housekeeper address her always as Mrs. Erlanger; visited them at the Hotel Ambassador; asked for Mr. and Mrs. Erlanger; was with them at their apartment; their demeanor and attitude toward each other was the same there as it had been other places where she had met them; they acted toward each other as husband and wife. She thought it was in 1921 or 1922 when the contestant called her up one day and said, “ I am married to Mr. Erlanger.” Both he and she invited Mrs. Clark to the West End avenue home. She described the birthday party of Mrs. Erlanger on December 9, 1926, there being present besides herself Mr. Baron, Mrs. and Mr. Erlanger; recalled another dinner when Mr. Dillingham was present; stated that she met Bergman, the decedent’s nephew, at the Erlanger suite in the Shelburne Hotel in the summer of 1927; visited *34 them at West End avenue home six or seven times, at Riverside drive six or seven times.

Mary Bothwell, who was a singer and known as Miss Wells, swore that she knew Mrs. Erlanger since 1926. She had been taken to the West End avenue home by Mr. and Mrs. Charles Evans and Mr. and Mrs. Lucien Denni, to sing a play which was afterwards produced by the decedent. She first met him and then Mrs. Erlanger came, and decedent said, “Miss Bothwell, I guess you are the only one who has not met Mrs. Erlanger. This is Mrs. Erlanger.” Witness met them at least fifty times from 1926 to the date of his death, at Riverside drive, in his office, in the theatre and at the Garden City Hotel. The name of the play in. question was “ Happy-Go-Lucky.” It opened in Boston and she played in it. Decedent assisted in the rehearsals and Mrs. Erlanger was present at the opening in Boston with Mr. Erlanger. She heard Mr. Evans on frequent occasions refer to Mrs. Erlanger, referring to her as Charlotte when talking to Mrs. Evans or Mrs. Denni. The servants addressed her as Mrs. Erlanger. She described how Mr. Charles Evans on the occasion of their visiting the West End avenue home said: “ Oh, Mrs. Erlanger would be a perfect prima donna for this part; ” how she said: “ Oh, do you think so, Charley? ” and he said: “ Yes, what do you think about it? ” and Mr. Erlanger sort of straightened himself up and said: “I have given Charlotte the greatest honor any man can bestow upon any woman, to be my wife, to grace my table, the head of my house. Now tell me, darling, you don’t want to go back on the stage; ” how she said, “ Of course not. Whatever you want me to do you know I will do.” Witness said she remembered that very distinctly. She further recalled that Mrs. Evans was sitting near Mrs. Erlanger and Mrs. Erlanger had a piece of jewelry on; Mrs. Erlanger had evidently remarked about it to her and then Mr. Denni asked, “ What is it? ” or something, and Mrs. Erlanger produced this — showed this bracelet that she had on, it was evidently a new bracelet or something, and they said how lovely it was. Mr. Erlanger said, “ I gave it to her. I never go shopping but I had to go shopping for that.” She said further that whenever she saw Mrs. Erlanger she wore a wedding ring, or what folks call a wedding ring. She identified Exhibit F as this ring that she saw her wear. She said that there came a time when she saw her wear an additional ring (Contestant’s Exhibit G) which she identified. Upon cross-examination she told of meeting Mrs. Erlanger at Christmas, 1920, at a musicale where she was a guest; her visit at the West End avenue home was in 1926. She saw decedent in the Garden City Hotel in 1926, having been taken down there by Mr. and Mrs. Evans and Mr. and Mrs. Denni. She met Mrs. Erlanger there.

*35 Reine Davies, of 321 Ocean Front, Santa Monica, Cal., knew Mrs. A. L. Erlanger from the year when she was sixteen; knew her as Mrs. Erlanger; before she knew her as Charlotte Erlanger she knew her as Charlotte Lesley, when she was playing in her company at the Victoria Theatre; met them together, 1923; met Mr. Erlanger in an elevator of the New Amsterdam Theatre and he introduced her to witness as Mrs. Erlanger; he referred to her as the child wife or the kid wife; she met them on four or five occasions; she met them in the first place in New York in the New York Theatre Building; in the second place in the New Amsterdam Theatre Building; the third place on the top of the Ziegfeld Roof; the fourth place in the Biltmore Hotel, Los Angeles. In the elevator of the New Amsterdam Theatre Building Erlanger said, “ I want you to meet the child wife; ” during the conversation at the Biltmore, Los Angeles, he referred to her as Mrs. Erlanger. As to relations, attitude of her toward him when she saw them together, it was the most lovable, the most sweet and the most devoted; and his attitude toward her when she saw them together was the most lovable. He called her the “ kid wife ” or the “ child wife.” Was present on occasions when Erlanger introduced her as Mrs. Erlanger to other people. She answered, “ husband and wife,” to the question, “ What was generally regarded the relationship between the gentleman and the lady known to you as Mrs. Erlanger? ” In cross-interrogatories she said she was not furnished with a copy of any questions; did not receive any instruction or advice from Mrs. Erlanger as to the nature of the evidence to be given by her; did receive letters since March seventh; did not receive one prior; did receive one after March seventh. As to being spoken to, she said she received a long distance from New York, from the Erlanger people, but did not know who it was that spoke to her. They told her that an attorney would call upon her. An attorney did call upon her. “ He came out to the house and asked me what I knew about Charlotte Lesley. I told him I only knew the nicest things about her, and I told him she was a wonderful little girl, and she had worked for me at one time.” In answer to the question whether she met Mr. Erlanger and the woman now calling herself Mrs. Erlanger, in August of 1919, in the elevator of the New Amsterdam Theatre Building, she answered, “ Yes; ” there was only the elevator man, Mr. and Mrs. Erlanger and herself present. Said she knew the woman calling herself Mrs. Erlanger, as Mrs. Erlanger prior to 1920; between 1920 and December, 1929; she saw the woman who called herself Mrs. Erlanger.

Helena P. Evans, Uplifters Ranch, Santa Monica, Cal., wife of Charles Evans, met Mr. Erlanger in 1926; knew Charlotte *36 Erlanger as Charlotte Lesley before she knew her as Charlotte Erlanger; visited them at their West End avenue home; they visited her at her apartment in Long Island, the Gibson Apartments; they had dinner there; her husband knew Erlanger a very long time, since 1900; had business relations with him; husband's name Charles Evans; they have been married twenty-six years. They visited them twice at West End avenue and once at Garden City Hotel; once the Erlangers had dinner with them in the Gibson Apartments; one visit at West End avenue was on May 18, 1926; up there to discuss the production of a musical comedy, the book of which the witness had written; greeted by Charlotte; taken upstairs, introduced to Erlanger, whom she had never met, although her husband and he were old friends; had dinner, Erlanger sat at one end of the table, Charlotte opposite him; during the dinner, Erlanger talked of changes he made in the book; witness said: “Are you going to produce it then? ” Erlanger said: “ I certainly am; it is the best book I have had handed to me since ‘ The Pink Lady.’ ” After dinner, to the library, and more talk about the book; Erlanger said: “ Of course, I couldn’t have done anything with it if it hadn’t been good, but 1 am very glad I can put your opera on for you because I feel that I owe you a debt of gratitude for interesting yourself in Charlotte when she was in the Warfield Company. She told me that it was through your influence she secured an audition for Grand Opera.” “ I said: ‘ That was nothing. I got Will Davis interested in her and he did the rest. I thought it was too bad she should throw away her marvelous voice. I thought, too, if she got interested in a career she would forget you and she was so very unhappy then.’ He said quickly, ‘I know, I know, but I intend to make up to her for all those years. I Would have done so long ago but little Charlotte has many enemies.’ ” Witness said: “ Everyone in our company liked her, and she devoted herself to caring for a dear old Jewess in the company; no one could have said anything against her.” Erlanger said: “ There are people who would have said anything against her to keep us apart but they have not succeeded.” At this point, Mr. Evans and Charlotte rejoined them, after looking at some Napoleonic books; made a date for May twentieth to bring the composer and his wife there so that he might hear the music; on May twentieth the Evans went again, taking a Miss Mary Bothwell with them, at Mrs. Erlanger’s invitation, to sing the numbers, also Mr. and Mrs. Denni; sitting around the dining room table they talked about the need of a prima donna to fill the role of Elsie Daily, and Mr. Evans said: “ Why can’t Charlotte play it; she looks the part and certainly can sing it? ” Charlotte- said: “ Oh, may I, Bunny, may I? ” Mr. Erlanger *37 seemed very displeased and spoke very severely to her. He said: “ Charlotte, I have given you the protection of my name and have placed you at the head of my table and now you ask if you may go back to the stage. Say you didn’t mean that, Charlotte.” She said: “ Certainly not, dear, unless you wanted me to. I just thought it might make you proud of me.” The witness said, “ remember this conversation distinctly because we talked it over afterwards, feeling sure that there had been a secret ceremony, although we had been told by friends of Mr. Erlanger that they were not married. Later the same evening, while we were all seated upstairs in the library, the front door downstairs was opened by someone and we heard steps on the front stairs. ‘ Who is that? ’ said Mr. Erlanger. Charlotte said, ‘ It must be the chauffeur.’ Mr. Erlanger said, £ Did you tell him to use the front door? ’ Charlotte said, ‘ Certainly not.’ Mr. Erlanger arose and went to the door, meeting the man as he arrived on the landing, and he said, ‘ Did Mrs. Erlanger tell you to use the front door? ’ and the voice replied, ‘ No, sir.’ Mr. Erlanger said, £ Then don’t.’ He re-entered the room and spoke to Charlotte and said, ‘ You had better get rid of that man, I don’t like him.’ ” In the month of June of the same year, witness called Mr. Erlanger up at his office, invited him and Mrs. Erlanger to dinner at the apartment they had taken in Flushing, the Gibson Apartments; witness had been unable to get Mrs. Erlanger on the phone at the West End address. He accepted and they dined with the Evans there. She said, “ Mr. Erlanger and I were working on the book, and I do not recall any vital conversation, except the fact that he called her £ his thrifty little house frau,’ because she had been making some new curtains for the house instead of having them made. Charlotte had not been feeling very well, I remember, and he said that the heat had been too much for his ‘ Little Blue Angel.’ I remember the fact because as her eyes are very brown I wondered where the blue came from.” Later in June the Evans were invited to dine with the Erlangers at Garden City Hotel; she was to deliver the corrected manuscript to him and say good-bye, as they were returning to California; had just arrived and were still on the porch when Mr. Erlanger and Charlotte drove up to the door. “ Mr. Erlanger motioned to us to come to him and we went to him. He sat in the car and looked very ill. He excused himself from dining with us, saying that he had been ill all day. Mr. Evans said, ‘ I don’t see why you don’t stay here, Abe, and let Charlotte put you to bed, you look all in.’ He said, 1 No, I’ll go home. You see, I let the folks have my house and they expect me to spend some time there with them. This is the last summer though that Mrs. Erlanger and I will be separated,’ stressing that Mrs. Erlanger. *38 (Note. It was thé last summer in which they were separated.) Charlotte said, ' Oh, Bunny/ and hugged him and then got out of the car. I delivered the manuscript, we said good-bye, and drove away. I turned to Mrs. Erlanger who was beaming and said, ‘ Why so happy, Charlotte? ’ She said, 1 Mr. Erlanger told me on the way home that he had arranged things so we could be married in February.’ I said, ‘ Why Charlotte, I thought you were married.’ Charlotte said, 1 Not by a Justice yet; there has been some legal difficulty about his affairs, but Bunny says he can fix them,.’ ” When Erlanger addressed the contestant, he addressed her as Charlotte or Dearie, or My Little Blue Angel, but mostly Charlotte. She usually addressed him as Bunny or Bunny Darling. In relation to demeanor and conduct of Erlanger towards Mrs. Erlanger and of her towards him, she said his demeanor was that of a very authoritative and possessive husband; and her demeanor was that of the most loving and subservient wife. Mr. Erlanger conducted the rehearsal of her opera; Mrs. Erlanger was in the theatre at the time; asked how Mr. Erlanger introduced Mrs. Erlanger to any person or persons, she answered, “ I do not recall ever having heard him introduce her.” Knew her mother, Mrs. Fixel, “ therefore I knew that her name was Fixel, but she was always known to me at that time as Miss Lesley.” Also asked: “ If so, when and how long, and were you then on terms of intimacy with her? ” In answer to this latter part, the witness replied, “ Friendship, never intimacy, I knew her from 1912 as Charlotte Lesley until I received the letter from her stating that she was Mrs. Erlanger, but I cannot remember when that was.” As to receiving any written announcement of her marriage to Mr. Erlanger, she said, “ I received a letter, saying that she was now Mrs. Erlanger; the date I cannot remember. I never received an engraved announcement card, if that it what is meant, but I received a letter from her stating that she was Mrs. Erlanger. I have not the letter.”

Charles E. Evans, of Uplifters Ranch, Santa Monica, Cal., husband of Helena Phillips Evans, knew Erlanger thirty-five or forty years; knew Charlotte Erlanger fifteen years or more; before knowing her as Mrs. Erlanger knew her as Charlotte Lesley; had business with A. L. Erlanger; Mrs. Evans wrote “ Happy-Go-Lucky; ” witness was present in the city of Boston when the play was rehearsed; Mr. Erlanger conducted some of the rehearsals. Mr. Erlanger did speak of and made reference to contestant as Mrs. Charlotte Erlanger at their house on Riverside drive; he referred to the conversation in reference to her playing the part in “ Happy-Go-Lucky,” the same conversation Mrs. Evans testified to. He said: “I suggested that she play the part and she seemed *39 quite pleased, and asked Mr. Erlanger’s permission to do so, and he made the statement that he had given her his name, put her at the head of his table, and now she was asking to go hack on the stage, and felt that she was wrong in desiring to do so.” Witness addressed her as Charlotte, deemed their relations toward each other to be man and wife; visited the Erlangers at West End avenue; dined with them at West End avenue house and witness’ apartment; witness and wife stopped at the Copley Plaza in Boston; the Erlangers were there; they had the same room — apartment; heard people other than Mr. Erlanger address her as Mrs. Erlanger in his presence. Originally Erlanger was a booking agent for witness’ attractions; when witness was at the Herald Square Theatre Erlanger arranged the attractions for his organization and booked them through the firm of Klaw & Erlanger; on very pleasant terms with Abraham Erlanger up to the time of his death. On cross-interrogatories he he said he was furnished no extract of questions, the nature of his evidence was not discussed with anybody; was given no instructions as to answers by Mrs. Erlanger; has not been promised nor given anything by Mrs. Erlanger; no one spoke to him in reference to his giving testimony; knew Mrs. Erlanger as a professional acquaintance since 1912 or 1914; knew her as Miss Lesley; he was introduced to her when she was with Mr. Warfield in “ The Auctioneer ” around 1912 or 1913; it was about the time of the production of “ Happy-Go-Lucky ” (1926) that he heard that she was Mrs. Erlanger; had never been on terms of intimacy with her; did not receive any written announcement of her marriage to Mr. Erlanger.

Betty Gallagher, an actress in “ Happy-Go-Lucky ” in August, 1926, stated that during the rehearsal Mr. Erlanger introduced to her the contestant as Mrs. Erlanger, stating that he wanted her to meet Mrs. Erlanger. At the opening of the play in Boston Mr. and Mrs. Erlanger were there; met them at their home at No. 232 West End avenue, and she always inquired of him for Mrs. Erlanger.

George Alexander Wembridge, the renting agent of No. 240 West End avenue, adjoining the home of decedent and contestant, saw Mrs. Erlanger there. Erlanger complained of the excessive noise that the builders were making and said Mrs. Erlanger was on the verge of a nervous breakdown; something must be done about the matter. This was around 1924.

Mrs. H. S. Lavner, of New York city, knew contestant in 1916 as Charlotte Lesley, saw her in the summer of 1927 at the Shelburne Hotel, Atlantic City; had not seen her in nine years; when she met her witness was calling on her brother-in-law and her sister, Judge Klenert and wife, of Paterson, at the same hotel; *40 had not known at that time that she was Mrs. Erlanger; when she saw her was not sure it was Charlotte; saw her again in the evening walking through the lobby with Mr. Baron. They embraced each other and witness told contestant how she saw her and was not sure contestant was Charlotte Lesley; she went to the cashier and asked if there was a Charlotte Lesley stopping there. Witness told her she was very happy to know that she was married, and asked her how many years she had been married; she said seven years. On the next afternoon she saw Mr. and Mrs. Erlanger, and the latter beckoned to her and she went over and contestant said, “ Belb, I want you to meet my husband, Mr. Erlanger.” She saw Mr. Erlanger going in and out while Mrs. Erlanger was always with him. She visited them in their apart?nent, heard him call for Mrs. Erlanger many times from his room. Witness sent flowers to them the morning after meeting her husband. Witness called upon Mrs. Erlanger at No. 175 Riverside drive when she got boxk to the city; called on the telephone there and asked for Mrs. Erlanger and the housekeeper came to the phone and subsequently she got Mrs. Erlanger to the telephone. Witness was positive that the meeting at Atlantic City at the Shelburne was in August, 1927.

Isabel Hobbs Rosenthal (Mrs. Walter J.) testified she was at the Blackstone Hotel in November, 1928, as a guest of Mr. Erlanger on two occasions, the party being made up of Mr. and Mrs. Erlanger and party and herself, the Mrs. Erlanger being the contestant, whom she originally knew as Charlotte Lesley; first met her around 1910 or 1911 in a boarding house at One Hundred and Thirty-ninth street, New York, where witness’ mother was living with Mr. and Mrs. Fixel, the parents of the contestant; again met her in 1915 or 1916 at another boarding house where witness’ mother and father-in-law and her husband and Mr. and Mrs. Fixel lived; was first introduced (6004) to Erlanger by Mrs. Erlanger at the Blackstone Hotel; he was introduced not as “ my husband ” but as Mr. Erlanger. She left before they did; she always addressed the contestant as Mrs. Erlanger; on the second occasion when she came there the party consisted of Mr. and Mrs. Erlanger and herself; then she occupied one bedroom, and the Erlangers occupied the other. On the first occasion they went to see “ No, No, Nanette,” and when they drove up a gentleman addressed Mr. Erlanger and he turned and presented witness and Mrs. Erlanger to this gentleman. Contestant’s father died before her mother (6032). She saw the contestant she thought in 1921; she went to her house at No. 232 West End avenue; she corresponded with contestant.

Dr. Charles D. Aaron, of Detroit (in a deposition); attended *41 University of Buffalo, University of Berlin; connected with Harper Hospital, Receiving Hospital, Tuberculosis Hospital, Shurley Hospital, and the Jefferson Clinic; is on the consulting staff of each of the above, except Harper Hospital; knew A. L. Erlanger, the latter introduced the lady known as his wife; saw him at the Shelburne Hotel, Atlantic City, during the summer of 1927; when he entered the sick room and shook hands with Erlanger, he said: “ Doctor, you have never 'met Mrs. Erlanger; ” he said, “ Darling, this is Dr. Aaron; ” as to the demeanor of Erlanger toward the lady known as Mrs. Erlanger, and her demeanor toward him, he said: “I was very much surprised that she seemingly knew so much about medicine. I asked her if she had ever been a nurse, and she said no. I then told Mr. Erlanger that he was very fortunate to have a wife who knew so much of medicine, because she see'tned very attentive; he was very kind and considerate of her; he told me then that he felt that he was very fortunate in having a wife such as she was; ” that he had not met Mrs. Erlanger up to the time Mr. Erlanger introduced her; only saw her in Atlantic City that time while he saw Mr. Erlanger, and she was present during the interview; he was there about an hour and a half. He spoke about a letter that he wrote to Mrs. Erlanger. At the time he believed thoroughly that she was Mrs. Erlanger, for there was no reason for him to think otherwise, and for that reason he wrote this letter. This letter was attached to the deposition and marked Exhibit 5. It was read into the record, addressed to Mrs. A. L. Erlanger, July 7, 1930, the Windermere, West End avenue at Ninety-second street, New York city. It is set forth in full on page 3377. It opens with an expression of his gladness to hear from her and a note of condolence and sympathy; spoke of having gone through the same experience himself, recalled a visit to the Shelburne, when he saw her and her husband, he remembered he introduced her as Mrs. Erlanger when he entered the room, was surprised when he read of the situation that came up after his death; said: “ Your devotion to him at the time of my visit proved to me your worthiness, and I could not help but tell him of it. While I cannot recall the exact words that were used at that meeting I do remember that I came away with the impression that Mr. Erlanger had a faithful and devoted wife, and I mentioned this to some of my friends. I shall be very glad to do whatever I can to help you.” Dr. Aarons further said that he never told anybody that he did not believe that the woman calling herself Mrs. Erlanger was in fact Mrs. Erlanger. (Note. See letter of Bert C. Whitney stating what Dr. Aarons said to him about Mrs. Erlanger.)

Henri Carpentier, the restaurant proprietor at Lynbrook, L. I., *42 first made the acquaintance of Erlanger in the Plaza Hotel in 1907; he mentioned various New York restaurants at which he met Erlanger, in various years, in some cases every day. Upon the witness stand in this trial he told of his own arrival in this country in 1907 and his first return to Europe since then was in 1919, from which he came back in the spring of 1920. This latter fact he associated with the time he was introduced to contestant by Mr. Erlanger, whom he quoted as saying, “Henri, my friend, I present my sweet, lovely lady, my wife.” He said that he had nowhere ever met her or seen her before this introduction in the spring of 1920; that after the spring of 1920 decedent would come there mostly once or twice a week, sometimes more; Mrs. Erlanger was with him every time he came. He was confronted with the answers which he made when a deposition was taken in 1930 at a time when he was about to leave for Europe, and in which he fixed the time of his first being introduced by Erlanger to Mrs. Erlanger as 1913 or 1914; he was confronted with various answers which he had made in this deposition bearing upon the time when he first met contestant, and his invariable answer was that it was a mistake, and that he first knew that he had made a mistake about the time.when he was on a trip to Europe (on the boat). He stated that it was absolutely in the spring of 1920 that he first saw contestant.

Henry Alfred Gibbon, in the room service of the Shelburne Hotel, Atlantic City, knew Mrs. Erlanger; stated that he knew her by the name of Mrs. Erlanger; he never knew of her stopping there except when Mr. Erlanger was there; that the first time he met Mr. and Mrs. Erlanger was in the summer of 1927; that he received orders from Mr. Armswalde, the maitre d’hotel, who brought him up and introduced him to Mr. and Mrs. Erlanger; that he always addressed them as Mr. and Mrs. Erlanger; that he never addressed her other than as Mrs. Erlanger; that he would see them three times a day; that Mrs. Erlanger invariably did the serving herself. She would serve the food to Mr. Erlanger, cut it up, butter his bread, scoop out a honeydew melon or cantaloupe, or whatever it would be; cut up his meat; that they did not seem to him “ anything more than husband and wife.” “ She acted very kind and very attentive to him,” that he had no reason to think that they were not Mr. and Mrs. Erlanger; that it never entered his mind that they were not Mr. and Mrs. Erlanger; thoi he took an order one night when Mr. Baron was there; that he stated to Mr. Baron when taking his order, “ Mr. Baron, Mrs. Erlanger has given me their order.”

Paul 0. ArmswaMe, maitre d’hotel for ten years, recalled Mr. and Mrs. Erlanger being there in July, 1927. He knew her as *43 Mrs. Erlanger. Mr. Erlanger said, “ Mrs. Erlanger will give you all the orders.”

Martha J. Curley, the chief telephone operator, knew Mrs. Erlanger in 1927. She called their suite very often and knew her voice. There was a call every day from New York for Mr. Erlanger, which she transmitted to Mrs. Erlanger; addressed her as Mrs. Erlanger.

Mary Churchville, the housekeeper at the hotel, supervised the rooms which they lived in in 1927 at that hotel. She knew Mr. and Mrs. Erlanger, and knew her as Mrs. Erlanger, saw her waiting on Mr. Erlanger during their stay at the hotel, and their attitude was one of affection; the decedent referred to her as Mrs. Erlanger.

Charles Contini, the barber at the hotel, knew Mr. Erlanger at the Shelburne in the years 1927 and 1928. He shaved him quite often in his apartment; always saw Mrs. Erlanger there. He testified that they acted towards each other as husband and wife, and that decedent called the lady Mrs. Erlanger.

Jennie Fielis, who had charge of their suite at the Hotel Shelburne in November, 1926, prior to November, 1926, confirmed the general repute of Mr. and Mrs. Erlanger at the hotel at that time. She knew her as Mrs. Erlanger, addressed her as Mrs. Erlanger, never heard anybody address her in any other way than as Mrs. Erlanger.

G. Boland Heiss, assistant manager of the Hotel Shelburne, testified that he knew Mr. Erlanger very well and saw him as a guest there, and knew Mrs. Erlanger as a guest of the hotel. In October, 1927, he received from Mr. Bergman (general manager of the Erlanger Enterprises and a nephew of Mr. Erlanger) a telephone call for reservations; identified the reservation blank of the hotel (Contestant’s Exhibit X); produced a record of the rooms occupied by Mr. and Mrs. Erlanger, valet and chauffeur, from July 27 to September 20, 1927, showing “ Mr. and Mrs. Erlanger, valet and chauffeur.” He stated that the charge slips (460) read “ Mr. and Mrs. Erlanger;” told how Mr. Erlanger when he was ill would come down in the elevator in a chair and go to the boardwalk; was wheeled to the front door; that Mrs. Erlanger was with him on practically every such occasion; that Mrs. Erlanger arranged the chair before he was put in the chair, had a comfortable armchair in the room, and saw that it was fixed right, placed just so; that flowers were sent to the room by the president of the hotel, Mr. Weikel, addressed to Mr. and Mrs. Erlanger; that witness addressed her in the presence of Mr. Erlanger as Mrs. Erlanger; that he never heard her addressed differently than Mrs. Erlanger; identified Mr. Weikel’s card which accompanied the flowers, upon which was the inscription: “ Mr. and Mrs. Erlanger; Mr. Jacob Weikel;” produced (490) a letter *44 from Mr. Bergman confirming the reservation for Mr. Erlanger for November 1, 1927, which letter was dated October 20, 1927 (Plaintiff’s Exhibit 3). This does not refer to “ Mrs. Erlanger,” but the letter of the Shelburne, Inc., to Bergman, dated October 17,1927, confirms “ arrangements made for Mr. and Mrs. A. L. Erlanger for their arrival on November 2d,” and the hotel’s letter to Bergman, dated October 18, 1927, notified Bergman that pursuant to his telephone with Mr. Tait, the date of arrival of “ Mr. and Mrs. Erlanger had been changed to November 1st.”

Theodore Kroell, manager of the Ambassador Hotel, learned of the intended arrival of Mr. and Mrs. Erlanger at his hotel; knew Erlanger in Europe a good many years ago, had never up to this particular time met Mrs. Erlanger; made it his business to see them; met them; identified the contestant as Mrs. Erlanger; he met her as Mrs. Erlanger while Mr. Erlanger was with her; he took it for granted that this was Mrs. Erlanger; they were there from September 21, 1927, to November 1, 1927.

George K. Nelson, Hotel Ambassador, said that they had at the hotel as guests Mr. and Mrs. Erlanger, that he met Mr. Erlanger, who said to him, “I want you to meet Mrs. Erlanger sometime went up to their apartment and he was introduced to Mrs. Erlanger. Witness explained the bills and checks produced (Contestant’s Exhibits C-5, D-5, E-5, F-5, G-5); check dated November first (Contestant’s Exhibit H-5). They stopped there June 23, 1929, and they left June twenty-sixth (Contestant’s Exhibit J-5). Ledger sheet was received in evidence, beginning with September 21, 1927, and was headed “ Erlanger, Mr. and Mrs. A. L., New York City, 9 ¡21 ¡27, Beg. No. 9507,” then appeared the room charge, the restaurant charges for each day, phone calls, items paid for baggage, papers, valet, and so forth. The second sheet was headed “ Erlanger, Mr. and Mrs. A. L., New York City, Boom No. 727;” that was their suite, “ 727-8-0, parlor and two bedrooms;” she occupied that apartment with Mr. Erlanger continuously during that period. He explained the guests have register numbers (Contestant’s Exhibit K-5). There was a registration number for Mr. and Mrs. A. L. Erlanger from September twenty-first. In making reservations in September, Dillon came there personally and spoke to the witness, and was shown different suites; there was a direction given, “ absolutely no publicity.” He said: “ Lots of guests say that when they come in.”

Joseph Deare, room clerk at the Ambassador Hotel, explained his duties; explained the reservation book; a card was sent up with flowers (Contestant’s Exhibit Q-5) to “ Mr, and Mrs. A. L. Erlanger, 1925, with respectful compliments,” etc.; identified registration slips *45 M-5, N-5 and 0-5; told how the names, etc., are typed out and sent to the various departments of the hotel, telephone, information, etc.

Mrs. Rose Mondini, telephone operator at the Ambassador, employed there from April 1, 1927, to the last of that year, told of receiving a record of the guests, Mr. and Mrs. Erlanger, and the date of their arrival, and the number of the suite they occupied; they received numerous calls, for Mrs. A. L. Erlanger; she ?nade the connection with Mrs. Erlanger; mostly all the calls were for Mrs. Erlanger, they would want to speak with Mrs. Erlanger.

Dr. Robert H. McConnell, a practicing physician since 1895, attending physician at the French Hospital, and president medical board over twenty-five years, first met decedent October 12, 1927, at his office; had been asked to go there by Judge Erlanger, a proponent. The same evening he met contestant at Hotel Ambassador, in their suite and he met a lady by the name of Mrs. Erlanger. She was there with Mr. Erlanger and the latter introduced her to him as Mrs. Erlanger. He treated him on October 12, 18, 25, 31; November 10, 15, 16, 19, 20, 22, 26, 29; December 3, 7, 10, 17, 20, 24, 27, 31, 1929, and continuously down to bis death on March 7, 1930. His testimony as to this later period will be reviewed further on.

In September of the years 1922, 1923, 1924- and 1925, Josephine Halloran, a masseuse of the Ladies’ Baths, French Lick Hotel, Indiana, knew Mrs. A. L. Erlanger, attended her in the baths; she introduced herself at the bath department as “ Mrs. A. L. Erlanger,” and her bath ticket charged to Mr. A. L. Erlanger, who she said was her husband. She knew Erlanger by sight. Contestant was the only one that ever informed her that she was Mrs. A. L. Erlanger. Mrs. Erlanger said to her that Mr. Erlanger and she came down the elevator together for their baths.

In September, 1922, Mrs. Minnie Adams, superintendent of the baths at the hotel, first got to know Mrs. A. L. Erlanger; she was stopping at the hotel during September, the exact date she said she did not know; but she said she was there in each of the following years, 1922, 1923, 1924, 1925, the witness declared that Mrs. A. L. Erlanger was known around the hotel as the wife of Mr. A. L. Erlanger. Contestant, however, she said, was the only person that ever told her that she was Mrs. Erlanger. Stated that they were known to her as Mr. and Mrs. Erlanger.

That the parties were registered at French Lick Hotel in the fall of 1924 as Mr. and Mrs. Erlanger was testified to by proponents’ witness, C. B. Dillingham, who stated that a lady whom Charlotte introduced to him asked him if he had seen Mrs. Erlanger, and *46 that he had never heard her called Mrs. Erlanger. go he said, “ No,” and walked away; and just then the clerk handed him a telegram right over the register, and on the register were the names “ Mr. and Mrs. A. L. Erlanger.” He went over to Erlanger and said: “Are you married?” And Erlanger said: “ Certainly not.” And then he said, “ Your name is on the register;” and Erlanger said, “Is it in my writing?” and he said, “ No, sir; it is not” (6185).

That the parties were present at the French Lick Hotel in November of 1921¡. and occupied the same suite in the hotel is vouched for by proponents’ witness, George G. Tyler, the theatrical man, who was a guest at the hotel at that time and who was present in their rooms. He stated, however, that he had not been introduced to her at that time, nor was he introduced to her when he met Erlanger and her at the Carlton Hotel in London in 1926, where the parties occupied the same rooms. Tyler saw the contestant at the West End avenue house on two occasions. Whenever he went to that house he saw the contestant. His direct testimony will be reviewed further on.

Another of proponents’ witnesses, Marcus Heiman, met Erlanger and contestant in the lobby of the hotel at French Lick in the fall of 1923 or 1924, and he saw them in the following spring in Chicago at the Blackstone Hotel. At French Lick Erlanger introduced her to him as “ Miss McQueen ” or some such name; he did not get it.

Charlotte G. Donnelly, sister of Mrs. Dillon, was private secretary from 1921 to 1926 to Mr. Golding, auditor of the Erlanger Enterprises; and from June 1, 1926, to June, 1930, she was secretary to Milando Pratt, Jr., who became auditor. Her work embraced the preparation of bank balance statements and of deposits, the payment of notes at maturity, clippings of coupons of bonds, taking of dictation from the head of the department, making bank deposits, the ■ obtaining of the payroll, arrangements for the renewal of notes, etc., on the bank balances; she had the assistance of Eddie Fitzgerald. She said, and this is in contradiction of Pratt,, that the income tax statements during the time she was in the employ of the Erlanger Enterprises, for Mr. Erlanger or for any of the corporations, were made up in the finance department always; she told how they were made up, from the first year that she went into, the employ of Erlanger, in October of 1921, up to the death of Mr. Golding, the auditor, Decoration Day, 1926. Pratt’s position was that of tax expert; he had an office in the rear of Golding’s office; Pratt usually got them out for Mr. Aguolia, and sometimes would fill in all the answers and figures and submit them to Golding with an initial on the lines where Erlanger was to sign, and Golding would hand them to Erlanger. When Golding died Pratt would have Aguolia make *47 out the income tax returns, fill in all the answers and the figures, and initial the line for Mr. Erlanger’s signature. Pratt would go over these statements with Aguolia and submit them, for Erlanger’s signature, submit them to Erlanger for his signature. (Aguólia was available as a witness, was in the court, but not called to the Witness stand.) Her attention was called to plaintiff’s Exhibit 139 (an acknowledgment supposed to have been made before her). She identified her signature and said that she was a notary at the time; and, asked whether Mr. Erlanger ever came in to the finance department to acknowledge his signature, she said, “ No.” She said she did not ever go into Erlanger’s office with these income fax statements for the purpose of acknowledging his signature. She said in regard to this that after Erlanger would sign the income tax returns he would send them up to Golding or Pratt to have her notarize them; that she did not either on the State or Federal income tax returns ever go over the figures with Erlanger; that she was not in Erlanger’s office at all with relation to these income tax returns, and that Erlanger was not in the finance department at all with relation to these income tax returns. Her answers apply, she said, to every one of the income tax returns upon which she took acknowledgment, both corporation and personal, and to the best of her knowledge she took the acknowledgment of the returns of State and Federal income tax from 1925 on down to the .death of the decedent; repeating that from 1925 she took the acknowledgments on both the corporation returns, State and Federal, and the individual returns of Erlanger from 1925 down to the time he «died. (This is a direct contradiction of the statements made on the witness stand by Pratt.) The witness acknowledged Erlanger’s individual State tax returns for the same period from 1925 on. She was shown a New York State income tax return, Exhibit 139, and it bore her acknowledgment, and the course of procedure that she had described did apply to this exhibit; she was shown individual Federal income tax returns (Plaintiff’s Exhibit 133), which bore her acknowledgment for 1925. She said that plaintiff’s Exhibit 140, New York State income tax return for 1927, bears her acknowledgment; also Exhibit 141, the New York State income tax return for 1928; also Exhibit 134, Federal income tax return for 1926; that also bore her acknowledgment, as does also Exhibit 136, being Federal income tax return for 1928; made the same answer as to the acknowledgment on Exhibit 135, being Federal income tax return for 1927; Exhibit 138, being State income tax return for 1925. Upon cross-examination she said she did not type the income tax reports; that she had nothing to do with the preparation, in addition to being the notary; she said in reference to income tax returns (6590), May, 1921, until May 31,1926, Pratt prepared them, *48 made all answers, put in the figures and initialed the lines for Erlanger’s signature, submitted them to Mr. Golding, who in turn submitted them to Erlanger for his signature; and from June 1, 1926, up until the time of her discharge Aguolia made those income tax statements, filled in the answers, put the amounts, and initialed the one which Erlanger was to sign, and Pratt in turn would submit them to Erlanger for bis signature; that was the preparation of the income tax statements; with this she had nothing to do, except to notarize them; she would notarize them always in her office; Pratt or Golding would bring them to her; from 1926 on it would be Pratt in every instance, and prior to that, Golding. She again said she had nothing to do except as notary with these returns; that she did not type them; that she did not get any information out of the books for them, when Pratt became the head of the finance department; she repeated again Aguolia prepared the checks, the returns, and answered all the questions; she saw him type the answers; she denied that she went with Pratt in the spring of 1928 to Erlanger’s office and saw him submit the reports of the income tax returns for 1927 to Erlanger.

Meyer Keen, of the Open Road Travel Bureau, first met contestant at the West End avenue home; she wanted to sail on the Majestic on June 4, 1927, and asked him to arrange for accommodations for herself and Mr. Erlanger. He produced a copy of the ticket that was issued and identified a duplicate of the ticket issued, which was brought to the court by Mr. Wall, the representative of the White Star Line. The original and copy of the ticket were marked in evidence (Exhibit N-3). They did not sail (1619); decedent was too ill; he canceled the sailing shortly before the steamer sailed. Keen received a message from Mrs. Erlanger (1622) to cancel the reservation on the Majestic and return the money, Keen having previously received money, $1,420, in the form of a check from Mrs. Erlanger. A letter sent by Goodman of the Open Road Travel Bureau to Mr. Wall of the White Star Line was marked in evidence (Exhibit R-3). In this letter, May 10, 1927, the writer referred to the contract ticket 182-544, “ For the ‘ Majestic,’ June Jj, Mr. and Mrs. Abraham Lincoln Erlanger.’’ The money was returned by a check to the order of A. L. Erlanger, delivered June 14, 1927, to Mrs. Erlanger; the receipt for the check is Exhibit T-3 for identification.

Edward K. King, who knew decedent for from sixteen to eighteen years, talked with him in the spring of 1925 about procuring a passport; they went down to the passport office; the necessary statements were filled out; Aarons was a witness. King described himself as a tax consultant, insurance and real estate *49 broker, practicing before the Board of Federal Appeals at Washington; he said that on several occasions he had a man come up after hours from the passport bureau to take a statement of the persons going abroad; pressed for their names, he mentioned Mr. Belmont, Mr. Klaw, Mr. Henry Miller, Justices Guy and Burr, some member of the Lehman family, Otto and Gilbert Kahn; he stated that he was a captain of marines, under Civilian Class Six, during the war, having his appointment in 1915 from the government; that he was assigned to Ellis Island; that he resigned at the end of the war. He saw contestant sign the application; could not rec’all the questions asked; remembered her being asked her name; thought she stated the name was Charlotte Fuechsel or Fixel, and she said she was professionally known as Charlotte Leslie; he did not recall her being asked whether she was married or single. He said that she said she was single at the instigation of Mr. Erlanger, who, before witness left his office that morning, said to her: “ Now, you are going under your maiden name ” (6443). He said that “ she was single ” was said after the application was being completed and this correction was made. Afterwards, an effort was made by the proponent, aided by counsel for the contestant, to have witness reappear for further cross-examination. He could not be served, and thus no further testimony was given by him. Later, a record of conviction of one Emanuel Keyser, on June 25, 1909, on a confession of forgery in the third degree, before Judge Fitzgerald in the Criminal Term of the Supreme Court, New York county, was produced by proponents (Exhibit 390, 6887). No objection was made to the receipt in evidence of a photo of Emanuel Keyser; the objection to the receipt of the inscriptions upon the back of the photograph was sustained (6895; Proponent’s Exhibit 393, for identification). Griffin, formerly a detective in the police department (6900), testified that he knew the person shown in the photo (Exhibit 390), as Emanuel Keyser, King and Meyer.

Summarizing contestant’s parole proofs covering the period from 1920 to November, 1927, during all of which time, except certain summers or parts of summers at the summer home of his sister at Lawrence, decedent lived with contestant, we behold a long procession of credible witnesses, called from all the contacts which decedent had during that period, from every sphere in which his life was spent. Upon the subjects of general reputation, repute and acknowledgment testimony showing that contestant was held out by decedent as his wife, Mrs. Erlanger, and generally known to be Mrs. Erlanger, was given by the neighboring tradesmen: Keeley, the fishman (2057); Riley, the butcher (2066); Russo, the fruit and *50 vegetable dealer (2070), and Noll, the grocer (2238); the domestic group: Margaret Anderson, the cook (1187); Andre Fray, the butler and valet (658-661); Charlotte Heitmann, the personal maid (770-779), and Albert Enipping, the cook and waiter, and Jennie Fielis, the cook and housekeeper, all of whom knew contestant as Mrs. Erlanger, heard her addressed as such in the home of the parties, saw her preside as head of the household and described the attitude and demeanor of decedent toward contestant; the office group: Brown, the telegrapher and telephone operator for five years prior to May, 1926, who testified that once a day, and at many times twice a day, for five years he called Mrs. Erlanger on the telephone at the West End avenue home at the direction of decedent (2049); Eddie Fitzgerald, financial clerk, who spoke to Mrs. Erlanger (2174) and who addressed her over the telephone as “ Mrs. Erlanger ” (2176) and who saw many bills that came down from the house marked “ O. K., Mrs. E.” (2192); Lars Jorgensen, an office assistant from 1923, who went to the West End avenue home with messages and packages, the majority of them addressed to “ Mrs. A. L. Erlanger ” and some to “ Mr. A. L. Erlanger,” two hundred times or more (2142-2158), who never knew her by any other name than “ Mrs. Erlanger ” (2143); and Mrs. J. J. Dillon, decedent's secretary from 1918 to his death, who knew contestant as “ Mrs. Erlanger ” as early as 1921 (2275); the hotel group: (a) at French Lick Hotel, Indiana, Minnie Adams and Josephine Halloran, superintendent of baths and masseuse, respectively, who knew contestant as Mrs. Erlanger at that hotel; (b) Lakewood Hotel, Lakewood, N. J., Irving Ulick, room clerk, who testified that Mrs. Erlanger registered as “ Mr. and Mrs. Erlanger ” in February, 1924 (2391), and were known as Mr. and Mrs. Ehlanger; and Nathan Jacobs, proprietor of the Lakewood Hotel, who testified that they were registered by Mrs. Erlanger as “ Mr. and Mrs. Erlanger ” while Mr. Erlanger was standing beside her in January, 1924, and who described further incidents that took place there at that time; (c) the Shelburne Hotel, where they were “ Mr. and Mrs. Erlanger,” as shown by the testimony of Heiss, assistant manager; Armswalde, the maitre d’hotel; Gibbons, in charge of room service; Mary Churchville, the housekeeper; Martha Curley, the telephone operator, and Charles Mondini, the barber, who shaved decedent quite often in his apartment at the hotel, always saw Mrs. Erlanger there, who testified that they acted toward each other as husband and wife and the decedent called her “ Mrs. Erlanger;” and the various exhibits which showed reservations made for “ Mr. and Mrs. Erlanger ” and accounts kept in the ledger of “ Mr. and Mrs. Erlanger:” (d) the Ambassador Hotel, New York city, where in September and *51 October, 1927, they were registered and known throughout the hotel offices as Mr. and Mrs. A. L. Erlanger, as shown by the testimony of Kroell, the manager; Nelson, the assistant manager; Deare, the room clerk; Mrs. Mondini, the telephone operator; John J. Dillon, and proponents’ witness, F. Richard Anderson (5267); and by various exhibits (K-5, M-5, Q-5, C-5 to J-5). Mr. and Mrs. Anderson dined with them there (5267); Henri Newell (979) dined with them there; also Mr. and Mrs. Denni called on them there (1962); the theatrical group; Eddie Cantor, who was introduced by him to her in London in the summer of 1925 in this wise: “ Eddie, I want you to meet my wife ” (2220); Betty Gallagher, actress, who was introduced by Erlanger to contestant as Mrs. Erlanger (819), and who met them as “ Mr. and Mrs. Erlanger ” at their West End avenue home (822); Albert H. Woods, "the theatrical producer, who was introduced to contestant as “ Mrs. Erlanger ” by Erlanger at Atlantic City. Though “ Al ” Woods had extensive association with Erlanger in joint productions, he said, “I have never been with him socially, only in business ” (155); Charles Evans, popular actor of a generation ago, who knew Erlanger for thirty-five or forty years, knew the parties as “ Mr. and Mrs. Erlanger;” deemed them as man and wife, recounting meeting sat West End avenue home, at Copley Plaza in Boston, and at his own apartment, and heard people other than Erlanger address her as “ Mrs. Erlanger ” (3512); Mrs. Helena P. Evans, author of “ Happy-Go-Lucky,” who testified similarly to her husband (3488), and who quoted Mrs. Erlanger as saying (3495) when she was asked, “ Why so happy, Charlotte? ” that Mr. Erlanger told her on the way home that he had arranged things so they could be married in February; and of her saying further when Mrs. Evans said, “ Why Charlotte, I thought you were married,” “ not by a justice yet; there has been some legal difficulty about his affairs, but Bunny says he can fix them.” (This colloquy took place in 1926.) Florenz Ziegfeld, the producer, who in Exhibit P. 10 wired on August 11, 1927: “Mrs. Charlotte Erlanger, c/o Abe Erlanger, Shelburne Hotel, Atlantic City, New Jersey. Would like Abe’s permission to announce ' Erlanger and Ziegfeld present Ziegfeld Follies.’ Regards, Flo;” and again on August twenty-eighth a telegram to “ Abe Erlanger ” at the same hotel, concluding with “ love to you and Charlotte,” signed “ Flo ” (Exhibit S-10; pp. 3560, 3561, 3563, 3565). Bert C. Whitney, a theatrical producer who wrote a letter addressed to “ Mrs. A. L. Erlanger, Shelburne Hotel, Atlantic City,” on August 7, 1927 (Exhibit X-10), a social missive but including a reference to a business matter, a mutual note; a second letter on August 28, 1927 (Exhibit Y-10) with the same address, “ Mrs. A. L. Erlanger,” etc., and a third *52 letter with the same address on August thirtieth, “ Mrs. A. L. Erlanger” (Exhibit Z-10). Mary Bothwell, who is professionally-known as Mary Wells, knew Mrs. Erlanger intimately since 1926, visited at the West End avenue house, to whom Erlanger introduced her as “ Mrs. Erlanger;” who met them at least fifty times from 1926 to the date of his death, heard Erlanger refer on frequent occasions to Mrs. Erlanger, whenever she saw “ Mrs. Erlanger ” she wore a wedding ring (identified by her as Exhibit F) and there came a time when she saw her wearing an additional ring (identified by her as Exhibit G, 1644-1 the social group: Mr. and Mrs. William H. Conger and Mrs. Stoy, the latter’s mother, who were introduced to Erlanger as “ my husband,” etc., by contestant in 1920 in Atlantic City, and who visited with the parties in New York in their West End avenue home later; Mr. and Mrs.'Frank McCulloch, sister and brother-in-law of Mrs. Conger, who were introduced to Erlanger by contestant in the summer of 1920 as her husband and who knew them as “ Mr. and Mrs. Erlanger ” and who dined with them in their West End avenue home; Dr. and Mrs. Frederick Stehle, brother-in-law and sister of Mrs. Conger, who met and knew the parties as “ Mr. and Mrs. Erlanger ” in Atlantic City on several occasions, beginning in 1920; Mrs. Amy Ashmore Clark (881), who heard her addressed as “ Mrs. Erlanger, Darling and Love,” who knew them as “ Mr. and Mrs. Erlanger ” and addressed her as “ Mrs. Erlanger ” at dinner when Dillingham was present, who visited them at Hotel Shelburne and Hotel Ambassador in 1927, who never heard anybody address her by any other name than “ Mrs. Erlanger ” or by her first name or " Darling ” or “ Love ” (887); Mrs. Harry S. Lamer, who met contestant at Hotel Shelburne in 1927; knew her as Charlotte Lesley; knew her in New York in 1916-1917; was introduced to Erlanger by contestant, saying, “ Belle, I want you to meet my husband, Mr. ErlangerMrs. Ethel Morganroth (1972), who was introduced to “ Mr. and Mrs. Erlanger ” (1986) by her uncle, Dr. Glass, a physician, at Lakewood, N. J. Mrs. Caroline D. Barnett, daughter of the vice-president of Durant Motors Company, who dined at the West End avenue home, was introduced by Erlanger to contestant as “ Mrs. Erlanger ” (2457) ; Mrs. Margaret M. Reid, of Port Huron, Mich, (deposition), who met Mr. and Mrs. Erlanger at French Lick Hotel in the spring and fall of five years, who said that Mrs. Erlanger was always with him, that she never heard her addressed by any other name (3388); Mrs. Isabel Hobbs Rosenthal, of Pittsfield, III., who knew contestant since 1911, met her again in 1915 or 1916, was a guest of Mr. and Mrs. Erlanger at Blackstone Hotel, Chicago, on two occasions, whom contestant introduced on the first visit to “ Mr. Erlanger ” *53 (6005); who dined with them, and slept in their suite; Miss Clara Kalisher, contestant’s music teacher, who knew her since 1902, when Miss Olivia Levintritt, daughter of Judge Levintritt, and contestant’s cousin, brought her to her studio, who was introduced to Erlanger thus: “ Clara, I would like you to know my dearly beloved husband; ” she visited them in their home frequently. In addition there were: George Alexander Wembridge, the agent of the apartment next door to their home, to whom decedent complained of the excessive noise the builders were making, saying, “ Mrs. Erlanger is on the verge of a nervous breakdown; something must be done about the matter ” (709); Pierre V. Sanegas, the hairdresser, who knew her as Charlotte Lesley, and around 1921 as “ Mrs. Erlanger,” who produced records of appointments for hairdressing of Mrs. Erlanger (1479); Henri Carpentier, proprietor of Henri’s Restaurant at Lynbrook, who made a deposition (4538); but testified (6516) that the parties frequented his restaurant; that in the spring of 1920 he was introduced to contestant by Erlanger, who said: “ Henri, my friend, I present you my sweet, lovely lady, my wife;” Dr. Charles D. Aaron, of Detroit, who saw decedent at the Shelburne, to whom decedent said: “ Doctor, you have never met Mrs. Erlanger,” and further, “ Darling, this is Dr. Aaron ” (3357). See the letters, X-10, Y-10, B. C. Whitney, written from Detroit, to “ Mrs. A. L. Erlanger,” in one of which reference is made to Dr. Aaron’s statements upon his return. Dr. J. C. Marshall, of Atlantic City, who knew the contestant as “ Mrs. Erlanger,” never heard her called by any other name, dined frequently with Mr. and Mrs. Erlanger, and heard Erlanger address her as “ Mrs. Erlanger;” W. S. Thompson, bank teller, Union Dime Savings Bank, forty years, who knew contestant as a depositor for about twenty years, becoming acquainted with her under the name of “ Charlotte Fixel;” she later changing the accounts to the name of Charlotte Lesley; who came to know her as “Mrs. 'Erlanger” in possibly 1920 or 1921, received the order for fifty shares Bethlehem Steel from “ Mrs. Erlanger;” the account in the bank at that time being in the name of Charlotte Lesley; who wrote “ Charlotte Lesley ” on various records of the bank (6451), and at that time knew that Charlotte Lesley was Mrs. Erlanger. Edward K. King testified to his being introduced by Erlanger thus: “ I want you to meet Mrs. Erlanger;” and as to colloquy with him about her traveling under her maiden name.

In addition to the foregoing testimony, various exhibits were offered in evidence by contestant as to this earlier period, 1920 to 1927 upon the issue of status. The following list embraces the more important exhibits:

*54 (1) License, operate a car, 1922 and 1923, issued to Charlotte Erlanger, 232 West End avenue (Exhibit Q-7). (2) Diamond ring purchased from Tiffany’s by Erlanger, November 29, 1924 (Exhibit F) . (3) Order slip, Tiffany & Co. (Exhibit Tt-2). (4) Receipt signed by Erlanger for this ring delivered to him, December 1,1924, at New Amsterdam Theatre (Exhibit S-2). (5) Bill, Tiffany & Co. to Erlanger, dated December 31, 1924, showing purchase of ring on November 29, 1924, for $880. This is a receipted bill showing payment on January 15, 1925, charged to Erlanger’s personal account. (6) Check for the payment of the same, dated January 15, 1925, A. L. Erlanger special account (Exhibit U-2). (7) A wedding ring with the word “ Dearest ’’ spelled out by the first letter of names of individual precious stones set in said ring, being a diamond, emerald, amethyst, ruby, emerald, sapphire and turquoise (Exhibit G) . (See testimony of Mrs. Conger and her mother, Mrs. Stoy, and of Mr. and Mrs. Dillon.) (8) Exhibit V, engagement ring of contestant’s mother and father, worn by her father and afterwards worn by Erlanger. (9) Exhibit W, Erlanger’s watch with photograph of contestant therein., (10) Records of the Shelburne Hotel, ledger sheets with the heading “ Mr. and Mrs. Erlanger, valet and chauffeur,” including the period from July 27 to September 21, 1927, and November 1 to 7, 1927, inclusive (Contestant’s Exhibit Y). (11) Hotel record of reservation made by L. Bergman, naming A. L. Erlanger and wife, dated October 17,1927, for November 2,1927 (Contestant’s Exhibit X). (12) Copy of letter dated October 17, 1927, addressed to L. Bergman, confirming arrangements made for Mr. and Mrs. A. L. Erlanger and Mr. Erlanger’s man, for their arrival on November second indicating arrangements for a porter with private conveyance to meet the train for Mr. and Mrs. Erlanger (Proponents’ Exhibit 7). (13) Letter to Bergman from the Shelburne Hotel, notifying him that they have changed the date of arrival of Mr. and Mrs. Erlanger to November first from November second. (Proponents’ Exhibit 8). (14) Order blanks, bills and checks of the W. J. Sloane Company for carpets for apartment 175 Riverside drive, and references, etc., to Mr. and Mrs. Erlanger, various dates in October, November, December, 1927 (Contestant’s Exhibits 7, F-7, J-7, K-7); these carpets were selected and purchased by contestant and paid for by Erlanger’s checks. (15) Reservation slip recording reservation, made December 7, 1927, by L. E. Bergman, for Mr. and Mrs. A. L. Erlanger, for January 2, 1928. (16) Copy of letter, Shelburne Hotel to L. E. Bergman, dated December 8, 1927, confirming his telephone request as to arrangements for Mr. and Mrs. Erlanger on their arrival at three o’clock, January 2, 1928 (Contestant’s Exhibit EE). (17) Thirteen can *55 celed checks signed by A. L. Erlanger, drawn to the order of the Shelburne Hotel on various dates in 1927. (Note particularly check of November 6, 1927, in the sum of $467.48.) (Exhibit FF). (18) Various sketches and blueprints, duplicate blueprints, architect’s files, papers in relation to cost of construction ($60,000 and $62,000); memorandum and further sketches and later studies (among the various rooms shown on the plan are “ Mrs. Erlanger’s room” and 11 Mr. Erlanger’s room”), all of which related to the plans of Erlanger to erect a villa upon the plot given to contestant in Garden City (see testimony of Upton, Anderson and Newell); (these exhibits are Contestant’s Exhibits KK, LL, MM, NN, OO, PP, RR, SS, TT). (19) Steamship tickets for the steamship Majestic made out in the name of Mr. Abraham Lincoln Erlanger and Mrs. Abraham Lincoln Erlanger. (20) A card accompanying flowers which was sent to Mr. and Mrs. Erlanger by the manager of the hotel, Jacob Weikel, in an envelope addressed “ Mr. and Mrs. Erlanger ” (Exhibit AA). (21) Check to W. & J. Sloane for $4,785.05, dated December 19, 1927, for carpets selected by contestant for the apartment on Riverside drive (Contestant’s Exhibit J-7). (22) Card record of photographic company with inscription, “ Mrs. A. L. Erlanger, 175 Riv. Drive, between 89th and 90th Streets, Apt. 0-12-E,” dated December 8, 1927, and showing a payment December 21, 1927, of $675 (Contestant’s Exhibit A). (23) Photograph of contestant with the inscription, “ Charlotte Erlanger, New Years Day, 1927.” (See testimony, p. 21, containing statement by Erlanger ■“ Darling, why don’t you give Miss Baker a picture;” P. 56, Erlanger statement: “ Now, you have Mrs. Erlanger’s picture; as soon as mine are finished I will autograph one of mine.”) (24) Photographic print of A. L. Erlanger (Contestant’s Exhibits C and D). (25) Photo print, different pose, A. L. Erlanger (Contestant’s Exhibit E). (Note ring on right hand pinky finger.) (26) Ledger sheets Ambassador Hotel, September 21, 1927, up to November 1, 1927, entitled “ Mr. and Mrs. Erlanger, New York City” (Contestant’s Exhibit K-5). (27) Bill, A. L. Erlanger, Hotel Ambassador, October 19, 1927, marked “ Paid Oct. 20 ” (Contestant’s Exhibit L-5). (28) Registration slip, Ambassador Hotel, October 20, 1927, with the inscription, “ Mr. and Mrs. A. L. Erlanger, N. Y. C.” (29) Card record entitled “ Mr. and Mrs. A. L. Erlanger, New York City, showing date of arrival 9 /21 /27 ” and dates in 1929 and 1930 (Contestant’s Exhibit R-5). (30) Blackstone Hotel records from departure book; “A. Wednesday, Nov. 8,1920, A. L. Erlanger, room 717 ” (Contestant’s Exhibit D-14); B Monday, November 5, 1923, inscription “ Not reg., 704, 5, 6, 7, A. L. Erlanger and pty,” all of these “ pty, valet; not *56 here to anyone; Miss Fixel, 707, Miss Rosenwald, 707 ” (Contestant’s Exhibit D-14.) (Note testimony of Isabel Hobbs Rosenthal, p. 6011); C. Wednesday, April 9, 1924, inscription “ Private reg. 904-5-6 and 1002, Mr. A. L. Erlanger, Miss L. Erlanger and valet.” (31) Private register under “ A. L. and Miss L. Erlanger and valet room numbers 904-5-6, 1002,” dated April 11, 1924 (Contestant’s Exhibit E-14). (32) Letter Blackstone Hotel management, describing photostat copies of entries forwarded by mail and explaining inability to locate private register covering Erlanger’s visit of November 16-19,1924, March 1-2,1926, and November 16-18, 1925. (33) Card sent with flowers in 1927 to Mr. and Mrs. A. L. Erlanger by the management of the Ambassador Hotel (Contestant’s Exhibit Q-5). (34) Ambassador Hotel registration record, “ Mr. and Mrs. A. L. Erlanger, New York City,” September 21, 1927 (Contestant’s Exhibit M-5). (35) Similar record for October 20, 1927 (Contestant’s Exhibit N-5). (36) Other Ambassador Hotel records referring to Mr. and Mrs. E. are K-5, L-5, R-5, S-5, C-14, D-14, E-14. (38) Thirteen checks, A. L. Erlanger to the Shelburne Hotel, dates: 8 /3 J27, 11 /6 /27, 9 /14 /27, 9 /7 ¡27, 9 /14 ¡27, 8/10/27, 8/11/27, 8/24/27, 8/31/27, 9/20/27, 1/7/28, 2/18/28, 4/7 /28 (Contestant’s Exhibit FF). (39) Steamship Majestic sailing June 4,1927, names Mr. Abraham L. Erlanger and Mrs. Charlotte Lesley (Contestant’s Exhibit 0-3). (40) Receipt signed A. L. Erlanger and C. Lesley for refund, $1,420 on ticket issued to Abraham L. Erlanger and Mrs. Charlotte Lesley for the steamship Majestic, June 4, 1927 (Contestant’s Exhibit T-3). (41) Operator’s license to operate car for the years 1923 and 1924, with the name Charlotte Erlanger, 232 West End avenue (Contestant’s Exhibit S-7) (42) Check for Durant car, A. L. Erlanger (Contestant’s Exhibit R-7). (43) Certified copy of New York State Census of 1925, covering the section in which 232 West End avenue is located; one line: 232 (West End) Erlanger, A. L.; relation, H; color, white; sex, M< age at last birthday, 59; nativity, U. S.; citizen, C; occupation, Theatre Manager; next line: 232 Lesley, Charlotte; relation, W; color, white; sex, F; age at last birthday, 35; nativity, U. S.; citizenship, C; occupation, actress (Contestant’s Exhibit J-14). (44) Envelope postmarked December 23, 1924, Port Huron, Mich., containing a card with Christmas greetings from Mrs. William Henry Reid and addressed to Mr. and Mrs. A. L. Erlanger, 232 West End avenue, New York (Contestant’s Exhibit Q-ll). (45)' Envelope from M. S. Spector, 260 West Forty-first street, New York city, postmarked August 9, 1923, addressed to Mrs. A. L. Erlanger, 234 West End avenue, New York (Contestant’s Exhibit O-ll). (46) Letter from Bert C. Whitney, Douglaston, Long Island, to contestant, beginning, *57 “ Dear Charlotte,” referring to Erlanger as “ The Boss,” to his health and his business, “ and Jack Dillon is pugnacious, a fighter and yet a gentleman,” closing with “ Love from Goodie and myself to the boss, and yours always sincerely, Bert (Whitney),” dated August 28, 1927; the envelope is addressed “ Mrs. A. L. Erlanger, Shelburne Hotel, Atlantic City” (Contestant’s Exhibit Y-10). (47) Letter of August 29,1927, opening: “ Dear Charlotte, Enclosed is a renewal for Bayside; will you ask the boss to put his name on the back, and you mail it in enclosed;” closing with: “ Love to you both and best wishes, yours sincerely, Bert C. Whitney;” addressed from Detroit, Mich., with special delivery stamp, to Mrs. A. L. Erlanger, Shelburne Hotel, Atlantic City; postmarked August 30, 1927 (Contestant’s Exhibit Z-10). (48) Letter, 12 ¡20 ¡27, addressed to Mrs. A. L. Erlanger, 175 Riverside drive, from Columbia Carpet Cleaning Company (Contestant’s Exhibit U-10). (49) Letter dated 8 ¡7 ¡27, from Bert C. Whitney, The Whittier, Detroit, beginning: “ My dear Charlotte;” the letter contains among other statements the following: “ I am enclosing that mutual note, also envelope to mail it in,” ending: “ Love to you both, many thanks, sincerely yours, Bert C. Whitney;” postmarked and stamped envelope addressed to Mrs. A. L. Erlanger, Shelburne Hotel, Atlantic City (Contestant’s Exhibit X-10). (50) Telegram, August 28, 1927, from Quebec, addressed “ Abe Erlanger, Shelburne Hotel, Atlantic City. My dear Abe, I got away just in time or I would have had a breakdown; I did not realize how I had sapped my vitality; am getting real rest sleeping outdoors. Hope, dear Pal, you are getting on fine. Love to you and Charlotte;” signed “ Flo ” (Contestant’s Exhibit S-10) (Flo Ziegfeld). (51) Telegram from Flo Ziegfeld to “My dear Abe,” dated 8 ¡28 ¡27, which concludes with the words, “ Hope, dear Pal, you are getting on fine. Love to you and Charlotte,” signed “ Flo ” (Ziegfeld) (Contestant’s Exhibit S-10). (52) Telegram 8 ¡11 ¡27, addressed to “ Mrs. Charlotte Erlanger, c¡o Abe Erlanger, Shelburne Hotel, Atlantic City. Would like Abe’s permission to announce ‘ Erlanger and Ziegfeld, present Ziegfeld Follies.’ Regards, Flo ” (Contestant’s Exhibit T-10). (53) Radiogram to “ Mrs. A. L. Erlanger, Steamship Augustus. Have been compelled send Abe important wire; please have him give it careful consideration as if he refuses me I would lose money every week of capacity business. Love;” signed “ Flo ” (Ziegfeld) (Contestant’s Exhibit Q-10). (54) Decree of divorce, Supreme Court of the State of New York, county of Orange, March 28,1912, in which Adelaide Louise Erlanger was plaintiff and Abraham Erlanger defendant; the decree dissolving the marriage of plaintiff and defendant solemnized on *58 July 5, 1891, at Toronto, Canada, and adjudging it lawful for the plaintiff to marry again during the lifetime of the defendant and that the plaintiff may be permitted to assume her maiden name if she so selects, and further provides that it shall not be lawful for the defendant, Abraham L. Erlanger, to marry again until the death of the plaintiff, and further decreeing the payment by the defendant to the plaintiff of $1,500 each month during the lifetime of the plaintiff and for so long as she shall remain unmarried, and further decreeing that monthly payments of $1,500 shall be continued to be paid out of the estate of the defendant (Contestant’s Exhibit H-14). (55) September 9, 1927, bill Boardwalk Art Galley for chair and rug, made out to Mrs. A. L. Erlanger, marked “ paid,” and another bill dated September 29, 1927, made out to Mrs. A. L. Erlanger, of the Boardwalk Art Gallery, stamped “ paid,” for four rugs, lamp shade and jar's; and a bill of Biddle’s, Inc., jewelers, September, 1927, made out to Mrs. A. L. Erlanger, 232 West End avenue, New York city, for needlepoint chairs and needlepoint stool, blue lamp and shade, etc., said three bills forming contestant’s Exhibit A-12. (56) Bill for electric service as of 11 ¡10¡27, paid 11 ¡16/27, made out to Mrs. A. L. Erlanger, 175 Riverside drive, Apt. 0-12-E, with “ O. K., Pratt,” on the back of [same (Contestant’s Exhibit L.). (57) Large photograph in a frame with the inscription “ To Mac and Dorothy, A. L. Erlanger ” (given to Mr. and Mrs. McCulloch, contestant’s witnesses, 1923) (Contestant’s Exhibit G-10).

Proponents called comparatively few witnesses to rebut the testimony of contestant’s witnesses relating to the period from January, 1920, to November, 1927, though proponents have offered documentary evidence.

Proponents’ witnesses were Joseph P. Bickerton, Jr., Nathan D. Stern and Saul J. Baron, who at certain times acted as attorneys for Erlanger; George W. Lederer, a former producer and later an employee of Erlanger’s; Charles B. Dillingham, a producer and partner of Erlanger in some ventures; Murray Lachman, his clerk; George C. Tyler, a theatrical producer and tenant of Erlanger; Marcus Heiman, likewise in the theatrical business and associated with the Erlanger Enterprises; Frank Richard Anderson, manager, and Milando Pratt, auditor, of the Erlanger Enterprises; Alfred E. Aarons, at one time in the employ of Erlanger (all the foregoing, it will be noted, are business friends of decedent); Philip W. Schimmel, Blackstone Hotel, Chicago; A. W. West (S. P. C. A.); Helen Tenbroeck, a former newspaper writer; Otto B. Shulof, a friend of Erlanger’s and his family; Fred Frankfort, a real estate man, and Lancey Milton Johnson, employed in Erlanger’s garage, and the *59 following, who produced records marked in evidence: P. Wynn, G. W. Conklin, J. Leddy, C. A. Pinckney, O. Langspecht.

Joseph P. Bickerton, Jr., an attorney for decedent from 1920 to 1925, came in daily contact and consultation with him; identified a perpetual lease in which “ Abraham L. Erlanger, single,” and “ Charles B. Dillingham, married,” were lessors, dated January 31, 1921; an instrument in reference to the Mason Opera House in Los Angeles, dated January 21, 1924, with the recital “ Abraham L. Erlanger, unmarried; ” and another instrument dated October 8, 1920, from Kate Mason Demming and her husband to “ Abraham L. Erlanger, unmarried.” He identified three other instruments (Proponents’ Exhibits 149, 151 and 152), the latter being a deed by decedent to his sister, Ray Erlanger, dated July 18,1922, of premises No. 232 West End avenue, and another instrument of the same date from Erlanger, residing at No. 232 West End avenue, covering premises in Lawrence. Bickerton visited the West End avenue house frequently; first met contestant there some time about 1920 or 1921; was introduced by Erlanger; is not certain whether she was introduced to him as Miss Lesley or Miss Pixel, but he knew that Miss Lesley was Miss Pixel. She was not introduced to him, he stated, as Mrs. Erlanger. When he dined at the house it was with Erlanger alone. He went to various places out of town with Erlanger on theatrical business. He was a guest at Garden City Hotel in 1922 and 1923. During these summers Erlanger, to the best of his knowledge and belief, was at Lawrence. He thought contestant was stopping at the Garden City Hotel. He described a visit made by contestant at Erlanger’s office some time between July 1 and December 1,1920, he being at the time with Erlanger in his office and the colored attendant announcing that Miss Lesley was outside and handing Erlanger a note; that Erlanger usually read the note and .gave Thomas some money; that this happened two or three times in that period. He twice fixed the year as 1920 (4047) and stated that this was before he met contestant at No. 232 West End avenue, and he thought that the lady whom he

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