Show AN DECISION at five judge anderson Ander sou filed the following opinion in the third district court in the matter of the estate of thomas cope deceased deceia ed george ff cope a son of the above named decedent applied too to the probate court of salt lake county for a distributive share of the estate of said decedent tills his right to share in such distribution was oh objected to by janet cope and thomas H cope lawful wife and son BOH respectively of said decedent A trial was had and the probate court adjudged that the said george H cope was not an heir of said decedent and not entitled to share in the distribution of his estate and decreed the distribution of the while estate remaining in the hands of the ad administrator in j n intrator to the said janet cope and thomas thamas H cope from this decree the so oyid id george H ave cope has appealed to this court CO C 0 whittemore hitte and wm armstrong attorneys for george H cope and lie le grand young and john M zane attorneys for janet cope and thos cope counsel for the respective parties have stipulated in writing thus rho fhe facts as stated and found in the decree of distribution made and delivered uy said probate court on the day of march 1889 are and shall be taken to be facts in the case and that the sole question to be determined in this case la is whether thi said george M cope mentioned in the decree as the polygamous child of thomas cope deceased is an heir of said deceased the facts found and stated in said decree so far as they are material to the determination of this thi case are as follows DECREE OF distribution george H cope son of thomas cope deceased having heretofore to wit on oil the ath day of february 1888 filed in the court his petition stating there among other things that the final account of thomas cope deceased had been stated and that said estate was in condition to be closed that a portion of said estate remained to be distributed among those entitled thereto and dmd he was a son of said thomas cope deceased and an heir to said estate and praying that a distribution of said estate be made and janet cope widow and thomas H cope the son of sait said thomas cope deceased having filed in this court their written objection to any of the said estate being distributed to said geo H cope because the said george H cope was not an heir to the estate of thomas cope deceased and amy praying g that distribution of said etab estate be made to them said matters coming on regularly to be heard beard on this first day of Ni march tarch 1889 at 10 a m the said george H ca cope appearing by his counsel C 1 0 littemore hit temore more and the said james cope and haid aid thomas H cope appearing by their counsel I 1 M waddell this court proceeded to the bearing of this matter and proof having been made to the satisfaction of the court that due notice had been given of the hearing of said petition as required by law and the order of the court and it appearing to the court from the proof made in open court that the said janet cope boje was the legal widow and the said thomas H cope was the legitimate son of said thomas cope deceased and one margaret cope the plural or polygamous wife of said deceased that t at the marriage of said thomas rhomas cope with said margaret cope was contracted when the said janet cope was the livin living gand and wife of the sa said id thomas cope deceased that the said thomas cope deceased died in salt lake city on or about the day of august 1864 leaving an estate consisting of the real and personal property hereinbefore in described the title to which Is held by thomas thom jack administrator of the estate of thomas Thoma cope sCope deceased der eased in trust for the heirs of said estate that the same is now in a condition to be closed that the whole of said estate was the separate property of said deceased the court finds that said george H cope is 18 a son of the issue of said polygamous lyga marriage of rhomas cope that he is not an heir of said deceased thomas cope and is not entitled to any share in the distribution of the estate the eburt court further finds that the said janet cope to is the lawful widow and the said thomas hhope Is the legitimate sou son of the said deceased and are the sole heirs of said deceased and were ere entitled to have said estate distributed to them it is hereby ordered adjudged and decreed that all and singular the real estate hereinbefore described be and the same is hereby distributed in full to janet cope and thomas cope in equal and undivided shares at the time of the death of said decedent the statute of the territory of utah in relation to the estate of decedents dece dents provided as follows to wit section 24 the I 1 homestead occupied by the wife or any portion of the family of the deceased at the time of his death shall in all cases be held free to the use of the wife and family of the deceased and shall not be liable to any claim or claims against the said estate and if there be any property remaining after the liabilities of the estate are liquidated then it shall in the alo absence sence of other arrangements by will descend in equal shares to his children or their heirs one share to such heirs through the mother of such children if she shall survive him during her natural life or during her widowhood or if he has had bad more than one wife who either died or survived in lawful wedlock it shall be equally divided between the living and the heirs of those who are dead such heirs taken by right of representation illegitimate children and their mothers inherit in like manner from the father whether acknowledged by him or not provided it shall be made to appear to the satisfaction of the court that he was the father of such illegitimate child or children this statute was enacted march 23 1852 and it is by virtue of the provisions of the last of the above sections that counsel for claimant contend that he is entitled to no distribution or share of said dece dents estate it will be observed that this statute makes no distinction as to their right to inherit from the father between the legitimate children and illegitimate children who are the offspring of a polygamous wife and the children of a prostitute although such illegitimate children may never have been recognized by the father during his lifetime yet after his death if it shall be made to appear to the satisfaction of the court diat he be was their father 11 they and their mothers were placed on sub equality with the lawful widow and legitimate children and inherit in like manner from the father whether the statute was void ah ab iquio initio because con arary tra rv to good morals and against public public policy it is not necessary to determine in this case in view of ef the acton act of congress of july 1st ast 1862 in compiled laws of ef utah 1888 vol 1 p 1079 9 the fl first rat section of this act prescribes the punishment for the crime ot of bigamy in any territory or other place over which the united states has exclusive jurisdiction the second section is as follows to wit section 2 that the following ordinance of the provisional government of the state of deseret so called namely an ordinance incorporating corp orating the church of jesus christ of latter day saints pawed passed february ath in the year 1851 and adopted re enacted and made valid by the governor and legislative i assembly of the territory of utah by an act passed january in the year 1865 1855 entitled an act in relation to the compilation and revision of the laws and resolutions in force in utah territory their publication and dis 1 and another act and parts of acts heretofore passed by the said legislative assembly of the territory of utah which establish support maintain shield or countenance polygamy be and the same are hereby disapproved and annulled provided that this acts act shall ball be so limited and construed as not to affect or interfere with the right of property legally acquired under the ordinance heretofore mentioned mention ednor nor the right to worship god ac according to the dictates of conscience but only to annul all acts and laws which establish maintain protect or countenance the practice of polygamy evasively called spiritual marriage however disguised by legal or ecclesiastical solemnities sacraments ceremonies consecration or other contrivances counsel for the widow and legitimate son insists that this act ace of congress disapproved and annulled the territorial statute gi giving I 1 to illegitimate children and their their mothers the right to inherit from the father upon the ground that the territorial statute maintained protected and countenanced the practice of polygamy at the time of the passage of this act the inhabitants of the territory were almost all members of the church of jesus christ of latter day saints sainto commonly called mormons cormons Mor mons they professed a belief in polygamy and their so called prophets and revelatory revelators reve latore claimed to have received revelations from god commanding its practice it was the most distinguishing gui shing feature of the mormon church church and its members had bad settled here that they might practice it undisturbed it was publicly taught in their churches and openly practiced in all parts of the territory by the people the governor and members of the legislative assembly belonged to the church and polygamy was established and the approved condition of the people in order however to induce women to willingly enter into such a life it was necessary to provide as far as possible for the support of such women and their children and I 1 think it cannot be disputed that this statute was passed for this purpose although it does not in express terms mention plural or polygamous wives or their children at common law illegitimate children were incapable of being heirs nor could they have any heirs but those of their own V body blackstone Black stones a Comment commentaries arJes V vol I 1 p while the rigid rule ru ae of the common law has been more or less modified in most of the states of the union so that dehat an illegitimate child can inherit from its mother and a mother from the child and in some of the states an illegitimate child may inherit from its father if recognized by him during his lifetime yet in no state or territory except in the territory of utah nor in any civilized nation of the world so far as I 1 am aware is there a statute giving to illegitimate children when not recognized by the father during his lifetime the right to prove after his death that they are his children and to I 1 inherit n from him the same as if they were legitimate I 1 think it is 18 plain that the territorial statute countenanced and protected the practice of polygamy and was therefore annulled by the act of congress referred to it follows that george H cope is not an heir of the decedent thomas H COW cope and is not entitled to share in the distribution of the estate the judgment of the probate court is affirmed |