| Show SUGDEN VS SENI Olt RULING OF JUDGE vani iani WHEN 1 A FIRST WIFE dieg DIES A pluman PLURAL kui WIFE DOES NOT pot BECOME TIIE tile LEGAL WIFE WIPE in the case of sugden vs senior in the third district court judge jude 0 zane on monday dec dee 15 made the following decision AMY SUGDEN et al vs f ELIZA I 1 SENIOR J this thi sis is an appeal from the probate couros cour of salt lake county by agreement of parties a jury is waived and the case cage is submitted to the court upon a stipulation from which it appears that on the ad dav dakof of march 1870 at salt sait lake city the late edward senior having a lalif lawful ua wife living g with her consent married ellza eliza senior according to the forms of plural marr marriage lige prescribed by the church ot of jesus christ of latter day saints of which they were all ali members that lie he lived and cohabited with both bath for several months when his lawful wife diemand die dand afterwards with the other to the loth day of december 1873 shen ahen he died intestate leaving the plaintiff and edward senior jr his children by his hig lawful wife and edwin senior jr and Fre fredreck fredrecka Fredrec dreek kJ J senior children of a bon hon the issue of the first marriage marriage that the surviving son also died in 1 1880 isso unmarried and without lineal descendants he also aiso left eliza Sen senior lor his plural wife the intestate died seized of lot no 1 in block 58 in plat C 11 upon which he at his death resided with his plural wife and his two grandsons who were minors butcho but who are now of age and married he also aiso left other property w which is not in dispute on ri these facts plaintiffs counsel claim that bhe she inherited one half of the real estate described absolute lythe debts having been lleen paid and that the other half passed to the grandchildren the defendant eliza senior claim claims S that she was the wife of the intestate at the time of his bis death and as such was entitled to share in his property that the formal marriage to the defendant was absolutely void vold JS i anas an assertion whish needs neither argument or the citation of authority in its support the parties to it knew that its us celebration was a violation of law when a man mail and woman enter into a formal marriage angood in good faith not knowing of an impediment which renders it void and live tog tom together getner gether as husband and wite wife aft after erthe the impediment is removed the law will indulge the presumption of marr marriage lage the intention to contract a lawful marriage in the first instance appearing it is reasonable to presume thau thad such intention continues after the obstruction ceases and such intention with the conduct indicating marriage Is iq sufficient evidence from which to infer ferth that atit it has actually taken place but when the impediment is known to the formally consummated cohabitation after its removal authorizes no such inference this view Is supported by br bishop on marriage and divorce vol 1 sections anu ana other otner authorities might also be bc cited counsel for defendant insist that the laws of Al mexico exico or the civil law I 1 ia otherwise and that upon the acquisition of california of which utah was a part apart from mexico the laws of that country continued ili in force in the ceded deded territory rv until expressly altered and that such change had not been made in this territory at the death ot the intestate when territory Is acquired upon Is which organized society exists in i which til the e rights and d aties of the people are defined and regulated plated re by laws such laws continue till altered by competent authority batchen but when territory is uninhabited at the time it Is acquired acquire a and people come in from froin the country receiving the acquisition they continue their usages and customs and follow the lines and rules of conduct with which they are f famili amilcar arthey they are not required to c conform to those of which hey they know nothing and which in fact llave mave no actual existence there it would be unreasonable to require people under tinder such circumstances to comprehend definitions of rights and duties and remedial forms and methods methodi to which they are strangers and which may be preserved in a f foreign ore language mai mar wh which eil cil they cannot understand at the lla time of its acquisition by the united states utah was wag inhabited by indians indian and a few thousand mormon settlers settimi who had just come in f from rom the various states where the common law existed in section 9 of an act of congress establishing ii a territorial government fur utah approved september ath ism itis is provided that the Supreme and a n I 1 DI district courts respectively shall possess chancery as well as common law jurls jutis jurisdiction diction jurisdiction is the power to inquire into the fact to interpret cons construe true truo and apply the law this act declares the existence of the common law so far as it relates to jurisdiction and appears to be a recognition of I 1 its t exist existence euce ence here at that time the court Is lof of the opinion that the common aw has existed in this territory since its organization it Is isalio also aiso claimed that tiie the defendant has lizis a homestead estate in the property in dispute b by y virtue of section 76 compiled laws of utah 1874 that section is as follows the by the wife or any portion of the family faintly of th the deceased at the time of his death shall in all cases be held free to the we use of the wife and family of the deceased and shall not be liable to any claim or claims against said estate and if there abert be other property remaining after ter ier the liabilities of the estate are liquidated then it shall la in the absence of other arrangements by will descend in equal shares to his children or their heirs one share to such heirs through the mother of SU such sueh C h children if she shall survive him during her natural life or during her wid if he has any more than one wife who either died or su survived in lawful wedlock it shall be equally divided between C living and the heirs of those who are dead such heirs taking by right of representation in this section the persons having the richt right of homestead are described as wife and family the term wife must be held to mean lawful wife and she could not be a lawf lawful ut widow without first being a lawful lawf ill til wife the marriage could afford her no valid right as widow if etwas it was void to her as wife in designating the person who inherit property p other than the homestead only the children and their heirs helis ani ann the mother nother of his children are mentioned the intention as expressed in this section only include the widow and the children of the intestate tind and their heirs the tha term 64 family as used in the statute e exempting K property from sale on execution is confined in terms to the section wherein it occurs and throws no light upon the term as used in the section under consideration th the claim that the defendant was a member of the family of the deceased and as such has a homestead right is without wl thou t warrant in law her heras association soc ia and cohabitation with him under the guise of marriage I 1 the law characterizes as adulterous and was nothing less than persistence in crime the court is oi of the opinion that one half balf of the premises descended to arn ain amy any y sudden the plaintiff and that edward senior and frederick senior each took one fourth and judgment will be r rendered accordingly C Q S zine Z 7 i nu YXE |
