Show RIGHr TO INHERIT The Opinion of the Supreme Court iii the Hanilley Case POLYGAMOUS CHILDRENS STATUS Kone of Those Born After 1PG2 Can Make Any Claim on their Fathers Estate The territorial supreme court was to have tnctyesterdsy morning at 10 oclock but at that hour only Judge Zane was present nd fcn adjournment was taken until 3 p m The four judges were on the bench in the afternoon when Judge Henderson delivered deliv-ered the following very important opinIon opin-ion in regard to the right of polygamous children to inherit Supreme court Utah territory la the I matter of the estate of George Handley deceased Hen erdon J The applicants Ruth A Newson Benjamin Benja-min T Handley Harry L Handley and I Sara A Chapman petitioned tho probate court for a distributive share of tho estate of George Hundley decetSed us his heirs tit law Their petition was dental in the probate court aud they appealed to the dis trict court where the judgment of tho pro bate court was affirmed and they appealed to this court Tho facts arc that George Handley died I I Intestate on the 25th day of May 1SW leav lug au estate valued at 25000 He left surviving him his wife and eight children named respectfully John Handle William Handley Charles J Handley Emma N Handley May F Handley Ruth A Ncw Bon Benjamin T Handley and Harry r F Handley the last three of wtioin I are petitioners and applicants herein The first four children above named wore all children of the deceased and Elizabeth Handley his lawful wife and the last four were children of the said deceased and Sarah Chapman his plural wife married to him according to tho tenets and rules of i the Mormon church and were the fruit ot that polygamous relation All these chil dren are still living except Mary one of the polygamous wifes children who died Role and intestate September 28 1STO and her mother Sarah A Chapman has suc needed to her interests Tho petitioners niyl appellants therefore are the polyga mous illegitimate children and the po I lygamous children and polygamous wife the latter claiming as heir of her deceased I daughter of the deceased and the only question presented by the record is wnether the surviving polygamous or illegitimate children are heirsatlaw of the deceased I nnd entitled to share in his estate the same as the children born in lawful wedlock The appellants base their claim upon the provisions of and out of the territorial leg islature approved March 3 1S32 Com Laws Hit pages UGS and SGJ section Gi7 which reads at follows Illegitimate chil 1 dren and their mothers inherit in like man ner from the fathcr 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 the illegitimate child 3 or children This statute so far as territorial enact ments are concerned was the one in force at the time of decedents death On the part of the respondents it is contended first that this statute was annulled by the antipolygamy act of Congress approved July 1 Ib02 Second that the act is against public policy and therefore void Tne antipolygamy act above referred is as fol lows Be it enacted by the Senate and House of Representative of the United States of America in Congress assembled that every person having a husband or wife living who shall marry any other person whether married or single in a territory of the United States or other place over which the United States have exclusive jurisdiction shall exceptin cases specified Jn the proviso of this section be adjudged guilty of bigamy and upon conviction thereof shall be punished by a fine note x ceeding live hundred dollars and by im prisonment for a term not exceeding five years provided nevertheless that this section shall not extend to any person by reson of any former marriage whoso hus band or wife by such marriage shall have been absent for five success ve ears with out being known to such person within that time to be living nor to any former mar riage which shall havo been dissolved by the decree of a competent court nor to any former marriage which shall have been annulled or pronounced void by the sentence or decree of a competent court on the ground of the nullity of the marriage contract Sec 2 And be it further enacted that the following ordinance of the provisional government of the state of Deseret so called namely An ordinance incorpor ating the Church of Tesus Christ of Latter Day Saints passed February S in tho year 1S55 and adopted reenacted made valid by tho govern and legislative assembly of the territory of Utah by an act passed January 19 in the year 1S55 entitled An act in relation to the compilation and re vision of the laws and resolutions in force in Utah territory their publication and distribution and all other acts and parts I of acts heretofore passed by the said legisla tive assembly of the territory of Utah which establish support maintain shield or countenance polygamy be and the same tereby are disapproved and annulled provided that this act shall be so limited and construed as not to effect or interfere with the right of property legally acquired under the ordinance Heretofore mentioned nor with the right to worship God according to the dictates of con science but to only annul all acts and laws whbh establish mtiat ala protect or countenance the practice of polygamy evasively called spiritual mar riage however disguised by legal or eccle siastical olemnitiessacra solemnitiessacramcntsccrcmony consecration or other contrivances By the organic act approved September 9 1ci50 relating especially to Utah Con cress conferred ijppr the territorial legis lature the right to legislate l upon all right ul subjects of legislation but reserved G itself the right to disapprove and there > y annuL Congress being the supreme lo rislativo authority over the territories it vould have this right of disapproval and to J niml any territorial law whether it was eserved or not National Bank vs county of Yonkton 101 U S 129 If therefore the territorial statute above luoted or that part of it which provides uuu iiiUfeiLiujuu cmiaren inherit irom theIr ather was disapproved and amended by he anti polygamy act above quoted then petitioners claim was properly denied ind this question is solved by determining he character of the territorial act Is It an act or part of an act which es tablishes maintains shields or counten mces polygamy In determining the character aud mean up of a legislative act the surrounding ircumstances existing at the time of its assagc as shown by contemporaneous lory should be considered ijndlich in his orht on the interpretation of statutes sec W thus states the rule SttUtCE Theinterpreter in order to understand lie subject matter and the scope and object If the enactment must in Cokes words iscartainivhat was tho mischief or defects or which the law had not provided that is 10 must call t his aid all those external or tistorical facts which tistoricl fact are necessary for hat purpose and which led to the enact nent He must refer to the history cnact I iDes to ascertain the reason for and he meaning of the provisions of he 1 statute and to the general I tate of opinion public Judicial md legislative at the tme publc the enact neat 1 I nent For this purpose the surt in interpreting the statute will take udicial notice of contemporaneous history T it may consult contemporary or other au hontic works of writingD In determining the meaning and effect of his statute therefore we pro to consider hat at the time the statute was passed the erritory had but recently been settled and rgauized that it was inhabited almost ex I lusivcly by people who believed in polyg any and plurality of wives and families as famies V part of their religious faith andthat its is ractice was common among them that the tgislative bodies elected by these people 1 ought to support shield t hed maintain a d t e 1 IL 1 countenance it The result of polygamy a a practice would be what would bo known to the law as illegitimate children indeed that would be its fruit there was no provision of law by which this illegiti ma mate mat ta children chidren or their ther mothers could coud in her it from the father This was the Tiff questioned condition of this territory when this statute was enacted and in view of it 1 I have no doubt it was intended to and did tend to support maintain and countenance 1 polygamy Imagine a woman approached wit proposition polygamy under such 1 circumstances no public sentiment against i it two deter or hinder the anxious inquiry t-wo uld be as to the legal status and rights woof herself and children by this statute they were provided for but it is contended that it would deter men from entering into I polygamy and would tend t create a sentient arainst it on the part ot of leg l es but this would not be so as to people who believe in it It cannot bo doubt that if polygamy was right this could bo a proper provision and its of-advo advocates must so regard it It is further cates-con contended that the provisions of the tended-territo territorial i statute in favor of illegitimate children is a proper measure for protection of an unfortunate and innocent class of persons and that the act of Congress should not be construed to prevent it that it was not the intention of Congress to go beyond the guilty parties in imposing penalties or rial-in inflicting punishments This view has been urged most eloquently and with great flicting-abil ability by the learned counsel for the ity-appel appellants It must be understood that lants-Con Congress was legislating against polygamy a I an institution that it intended to disapprove of all that tended t establish support countenance I mantain it it sought to lessen and gress-pre prevent illegitimate children by breaking preI I and destroying the system that supplied I and produced them In monogamous vent-com communities a is well understood the munities-invar invariable moral sentiment makes a plain iable-dis distinction between the ill begotten and the lawful born and however much we may pity and sympathise with the innocent tinction-suf sufferers from this sentiment it must bo ac knowlegcd that its existence is one of the potent factors in preventing social and ferers-sex sexual irregularities Congress has recognized I the potency of denying t illegitimate ual-child children the rights of legitimacy inheritance as a means of breaking and discouraging polygamy In the acts of 1SS2 and I ISbT 22 stat at large 31 24 stat at large 037 it is provided that illegitimate children begotten thereafter shall not inherit And so emphatic is the language of the latter act that it may well be doubted whether testamentary ren-provi provision can be made for them On the sion-argu argument it was contended that the law of arguI lS2 supra provided that illegitimate children begotten thereafter should not inherit and this would have been unnecessary i ment-Con Congress had as contended in Ib02 annulled the territorial net ant this is claimed as evidence that Congress did not so construe the law of 1862 but it will be seen that the act of lSis3 legitimates polygamous childrei begotten before its passage I under the territorial law they already inherited tha i like manner as legitimate children thuor would have been unnecessary To my mid all this is only evidence that Con gress intended to legislate upon all these subjects for itself primarily and without reference to the territorial enactments gress-ex except to disapprove and annul all acts or part of acts thereof which tend to cept-encour encourage or countenance polygamy It is age-con contended Congress did not intend to annul this territorial provision und did not regard it as one of the acts that countenanced and protected polygamy because it has at least twice made similar provisions but tho acts referred to only legitimate children born bi tended-a fo are and within a short period after the passage of the act Tho objection of re-ex extending the provision to children born within a few months after the act placing them on an equality with those born before is too obvious to require mention Sub stantially these acts only legitimate tending-chil 1 children begotten prior to their passage and publication I is a concession atin favor of illegitimates then dren-begot begotten and as before stated this is coupled with a provision denying the right of inheritance to thosebegotten there after The territorial act on the contrary S act establishes a continuing rule that runs with the future In this respect there is the same difference between the territorial and federal acts that there would be between a pardon granted for a past offense and a commission to go forth and commit an offense in the future with impunity I am of the opinion that the territorial act was disapproved and annulled by the antipol ten-g gamy act above referred to and that the judgment j appealed from should be affirmed Zane C J concurs Judge Blackburn dissented from this opinion and in the case of the estate of Thomas Cope in which the same question was involved Judge Henderson amy-an announced that as the case was tried before Judge Anderson and Judge Zanp appeared as counsel it was submitted to himselt and Judge Blackburn to decide They could not agree however and the judgment j of the court below denying the Tight i of tho children to inherit was nounced-af affirmed Judge Judd at once gave notice of gve an appeal to the supreme court of the I United States I the case of Jacob Johnson vs the United State Judge Zane delivered the 1 opiuion In this case the plaintiff sued to recover claims for services rendered as United States commissioner which had been disallowed The court below firmed-dis dismissed the case holding that it had no jurisdiction j over causes against the missed-govern government The decision yesterday reversed thisand remanded the case for trial In the lon pending case ot the Soci etc des Mines 13Argent vs Richard ment-Mackin Mackintosh the judgment of the court below in favor of the plaintiff was affirmed The defendant sued to recover o000 alleged to bedue on the promissory note given by the defendant to F Medhurst in 1832 and the defense was that it was merely an accomo dation note In the case of A T Webb administrator of the estate of Louis T Webb vs the D R G W railway in which the plaintiff recovered damages to the amount ot nearly SoOOO the judgment of the district court was reversed upon errors in the charge of the trial judge Judge Zane announced that in the church case the receiver would sell the sheep in his possession and that an order would be inado later Spanish Fork City vs J D Mortensen judgment affirmed Tolaad v Corey findings of fact filed Viliam Hqpple and W A Kinney were admitted practice Court then adjourned until this morning at 10 oclock ocock |