| Show THE RECENT DECISION ON wednesday last the contained an article in reference to a probate caw case in which the heirs of the late orson pratt were the principals judge bartch decided that the law of 1876 which gives all eh ildren born out of legal beir ship who were recognized ty toy their parents during the latter Is lifetime is valid and that the applicants for a share in the distribution of the residue of the estate in point were entitled to it this decision was commended as an sound and sensible 1 it was shown in the article that the same view could not be consistently taken of the decision ot of judge andersen andersan in the case of cope vs cope in which the same point was waa involved me cue latter opinion affirmed a judgment entered in the probate court by J judge adge marshall marshal 1 in that affirmation associate eualee And anderson ereon declared the territorial statute of 1876 invalid because in giving the status of to children born out of legal wedlock it encouraged polygamy we showed that if such encouragement was given by the law of 1876 it was more emphatically tendered in the edmunds law of 1882 which legitimated all children born in the polygamous relation up to janiw january lot 1883 it could readily be inferred from the article that the position taken by judge anderson and that of judge marshall affirmed by it were identical in every particular such however was not the case in one kupect the last hot named functionary sustained the law of 1876 as valid but claimed that there was a period dating from 1862 to 1876 wherein all children born out of legal wedlock were wen barred from heire hip this vacuum it was claimed by him was created in this way in 1862 1852 a territorial law was waa enacted and approved similar to that of 1876 with the difference that the former measure gave children born out of legal marriage the status of heire hip whether or not they were recognized by their parents during the life of the latter judge marshall held that this law encouraged polygamy and was therefore annulled by the congressional anti polygamy low law of 1862 hence that from the last named year till the statute of 1876 was enacted illegitimate children born within these dates had no heire hip rights this explanation is made simply that the position of judge marshall may not be misunderstood it appears that the applicant cope the son odthe of the late thomas cope by a plural wm wife was boria in the I 1 interim defined by judge marshall otherwise the latter would have granted the application but we still hold that his honor was in error be bause w we i e cannot see that any such interim as the one referred to existed the law of 1852 was in exact line with that of 1876 with the exception that in the former recognition of illegitimate children by their parents was not made an element to ensure As polygamists invariably recognized their children the intent of the measure was evidently to cover all owes cases including the issue of sporadic die sexual commerce where parents are not usually ready to acknowledge their progeny besides the congressional law of 1882 the edmunds act legitimated WJ all issue of polygamous marriages born pro to jan lot 1838 1833 consequently it bridged judge marshallis Mar vacuum it may be hold held in controversy tho sheaf and legitimacy are conditions they are am how ever intimately related for instance of what particular good would the he solitary beneficent provision of the edmunds act be to the benefi clares children not in any way responsible for the conditions of their birth if it simply simple placed upon them the legal stamp of legitimacy without relating to any of the rights or privileges growing out of that status it is not to be presumed that congress and especially the grim author of the bill had any thought of giving the children born within the plural marriage system a merely sentimental standing the territorial statutes of 1852 and 1876 were plainly in line in this particular with the anti polygamy law of 1882 1682 consequently although judge budge Max marshall shall did not go so far as judge anderson andersen he was in our judgments judgment in error in the case in question |
