| Show polygamous CHILDREN CANNOT INHERIT at the session of the supreme court monday july after the went to press the following decision was rendered supreme court utah territory in en the matter of the estate of george lon handley dley deceased henderson J the applicants applicant a ruth buth A newson benjamin T handley harry barry L handley and sarah A chapman petitioned the probate court for fora a distributive tribu tive share of the estate of gdorge handley deceased as his heire hein i at law their petition was denied in the probate court and they appealed to the district court where the judgment of the probate court was affa affirmed amed and they appealed to this court the facts are that george handley died intestate on the day of may 1874 leaving an estate valued at he left surviving him his wife and eight cb children Aldren named respectively a ively john haudley handley william wandley handley charles J handley emma N handley may F Uan handley dley ruth A newson benjamin T r handley and harry F handley the last three of whom are petition ers era and applicants herein the he first four children above named were all children of the deceased and elizabeth handley his lawful wife and the last four were children of the said deceased and sarah chapman hi his IT plural lural wife married to him according C r edg to the tenets and rules odthe of the mormon church and were the fruit of that polygamous relation ioD all these children are still living except mary one of the polygamous cifes children who died sole and intestate september 28 1878 and her mother sarah A Cha chapman PHIRD has ha s succeeded to her interests the pe titio ners and appellants therefore are the polygamous or illegitimate children and the polygamous lyga children aad polygamous wife the latter claiming as heir of her deceased daughter of the deceased and the only question an presented by the record is whether the surviving polygamous or illegitimate children are heirs heire at law of the deceased and entitled to share in his estate the same as children born in lawful wedlock the appellants base their claim upon the provisions of an act of the territorial legislature approved march 3 1852 corn com laws 1876 pages and section which reads as follows 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 the illegitimate child or children f this statute so far as territorial enactments are concerned was the one in force at the time of decedents dece dents death on the part of the respond ants it is contended first that this statute was annulled by the act of congress approved july 1 1862 second that the act is ia against public policy and therefore void the anti polygamy act above referred to is as follows be it enacted by the senate and house of representatives 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 si single agle in a terri to tory of the united states or other I 1 er place over which the united states have exclusive jurisdiction shall except in cases specified in the proviso of this section be adjudged guilty of bigamy and upon conviction thereof shall be punished by a fine not exceeding five hundred dollars and by imprisonment for il a term not exceeding five years provided nevertheless that this section shall not extend to any person by reason of any former mari maniace jage whose husband or wife by such marriage shall have been absent for five successive years without being known to such person within that time to be living nor to any former marriage which shall have been dissolved by the decree ofa of competent court noto no to any former marriage which shall have been annulled or pronounced void by the sentence or decree or a competent court on the ground of the nullity of the marriage covenant see sec 2 and be it further enacted that the following n g ordinance of the provisional government of the state of if deseret so called namely an ordinance incorporating the church of jesus christ of latter passed february 8 in the year 1855 and adopted re anactes and made valid by the governor and ae legislative 2 isla tive assembly of the territory of utah by an act pawed passed january 19 in the year 1855 entitled an act in relation to th the e compilation and revision odthe of the laws and resolutions in force in utah territory their publication and distribution andall other acts and parts of acts heretofore passed by the said legislative wembly assembly of the territory of utah which which establish support maintain shield or countenance polygamy be and the same hereby are disapproved and annulled provided that this act shall be so limited and construed as not to affect 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 conscience but to only annul all acts and laws which est establish ablis maintain protect or countenance tn practice of polygamy evasively ed spiritual ual marriage however by legal or ecclesiastical solemnities sacraments ceremony consecration or other contrivances by the organic act approved september 9 1850 relating especially to utah congress cont conferred erred upon the territorial legislature the right to legislate upon all rightful subjects of legislation hut but reserved to itself the right to disapprove and thereby annul congress being the supreme legislative authority over the territories it would have this right of disapproval and to annul any territorial law whether it was reserved or pot not 1 gati oDal bank vs county of yankton U 8 if therefore the territorial statute above quoted or that martof part of it which provides that illegitimate children inherit from their father was disapproved and amended by the anti polygamy act above quoted then the petitioner petition ers claim was properly denied and this question q fuestion is solved by determining the character of the territorial act Is it an act or t capart of an act which establishes maintains shields or countenances polygamy in determining the character and meaning of a legislative act the surrounding circumstances existing at the time of its passage as shown by contemporaneous history should be considered reconsidered Fud lich in his work on the interpretation of statutes see 9 thus states the rule rhe fhe interpreter in order to understand der stand the subject matter and the scope and object of the enactment must in copes copers words ascertain what was the mischief or defects for which the law had not provided that is he must call to his aid a all those external or historical facts which are necessary for that purpose and which led to the enactment he must refer to the history of the times to ascertain the reason for and the meaning of the pro provis visions ot of the statute and to the general state of opinion public Judie judicial ial and legislative at the time of the enactment for this purpose the court in interpreting the statute will take judicial notice of contemporaneous history or other authentic works of writing in determining the meaning and effect of this statute therefore we are to consider that at the time the statute was passed the territory had but recently been settled and organized gani zed that it was inhabited almost exclusively by people who believed in polygamy and plurality of wives and families as a part of their religious faith and that its practice was common among them that the legislative bodies elected by these people sought to support shield maintain and countenance it the result of polygamy as a practice would be what would be known to thelah the law as illegitimate children indeed that would be its fruit there was no provision of law by which these illegitimate children alldren or their mothers could inherit from father this was the unquestioned condition of this territory when this statute was eti enacted acted and abd in view of it I 1 have no doubt it was intended to and did tend to support maintain and countenance bolg amy Ina imagine agine a woman approached with a proposition of polygamy poly garoy under buch circumstances no pub lic sentiment against it to deter or hinder the anxious inquiry would be as to the legal status and tights lights of herself aud and children th ildren by this statute they were provided for but it is contended that it would deter men from entering into polygamy and would tend to create a at s beut against it on the part of legal wives but this would not be so as to people who believe in it it cannot be doubted that if polygamy was right this could be a proper provision and its advocates must so reg regard ardit it it is further contended that aba the provisions of a territorial statute in favor of illegitimate children is a proper measure tor for the protection of an unfortunate and innocent class of persons and that the act of congress should not be construed to prevent iland that it was not the intention nth antion ot of congress to go beyond the guilty parties in imposing penalties or inflicting punishments this view has been urged most eloquently and with great ability by the learned counsel for the appellants it must be understood that congress was legislating agai against ast dst polygamy as 99 an institution that it intended to disapprove of all that tended to establish support countenance or maintain sought to less eu and prevent illegitimate children by breaking up and destroying the system that supplied and produced them in monogamous communities as is well understood the invariable moral sentiment makes a plain distin tion between the lit ill begotten and the lawful born and however much we may pity and sympathize with the innocent sufferers from this sentiment it must be acknowledged that its existence is one of the potent factors I 1 in in preventing social and sexual irregularities congress has recognized th the potency of denying to illegitimate children the rights of legitimacy and inheritance as a means of breaking up and discouraging polygamy I 1 in it the acts of 1882 and 1887 22 stat at large 31 24 stat at large 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 provision can be made for them on the argument it was contended that the law of 1882 supra provided that illegitimate children begotten thereafter should not inherit and this would have been unnecessary if congress had as contended in 1862 annulled the territorial act and this is claimed as evidence that congress did not so construe the law of 1882 but it will te seen that the act of 1882 legitimates polygamous children bego begotten teu before ice passage if under the territorial law they already inherited in like manner as legit mate children this thia would have been annece sary to my mind all this is only evidence that cou con gross gress intended to legislate upon all these subjects for itself primarily and without reference to the tha territorial enacts als t except to disapprove and ancill all acts or parts of acta thereof which tend to encourage or countegan coun e polygamy itis it is contended congress did not dot intend to annul this territorial provision and did not regard it as one of the acts that con ced and protected polygamy bebau because se it has at least twice made similar provisions but boit the aels acts referred to only legitimate children born before and within a short period after the passage of the act the objection of 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 substantially these acts only legitimate children begotten prior bior to their passage and publication tt t is is a concession in favor of 1 il I legitimates then begotten and as before stated this is coupled with a pro provision vision deny denying ing the right of inheritance to those begotten thereafter rhe fhe territorial acton act on the contrary establishes a continuing rule that runs with the future in this respect there is the same difference i the territorial and federal acts that there would be between a pardon granted for a past offense and a commission to go forth and ci amit an offense in the future with impunity I 1 adof am of the opinion that the territorial act was disapproved and annulled by the anti polygamy act above referred boand to and that the judgment appealed from should be affirmed zane C J concurs dissenting OPINION territory of utah in supreme court in the matter of the estate of george handley deceased opinion by blackburn judge I 1 am compelled to dia dissent ent from the opinion of the court the facts are not in dispute but are as stated the only question is was the law such in 1874 when the decedent died that an illegitimate or polygamous child was entitled to share in his fathera father a estate by B the law of 1852 of the territory of utah illegitimate children inherit in like manner from the father whether acknowledged by him or not dot provided it shall he be made to the satisfaction of the court that he be was the father of such illegitimate child or r children in like manner referring to other portions uns of the act means as legitimate children there is no question made nor could any be successfully made that the right of illegitimate children is a rightful subject of legislation therefore if this law was in force at the time in 1874 when the decedent died there can be no doubt that the appellant was e en titled to a share of his fat fathers bers es J tate 1 it was in force so far as any act acta 1 of the territorial legislature at that r time was concerned for it had not heen been repealed repeal eil or changed by that body but the contention of the respondents pon dents is that it was annulled by the act of congress of 1862 fou found nd in I 1 0 C L of utah p sec 2 which annuls the act of the territory of uth incorporating the church of jesus christ of latter day saints and all other acts acta or parts of acts heretofore passed by said legislative assembly of the territory of utah which establish support maintain shield or coun polygamy and the section clo closes sesby by providing that the purpose of this act shall be only to annul all acts and laws lava and parts of laws which establish maintain or countenance the practice of polygamy evasively called spiritual marriage however disguised by legal or ecclesiastical sacraments ceremonies gnon les couse nations or other contrivances tri vances it is contended that act of congress annuls the act of the legislature of utah giving the right to illegitimate children to share in the fathers father estate because such right of inheritance supports maintains anti and encourages polygamy the purpose of the act of congress of 1862 was waa to define and punish polygamy and to annul all laws of the territory in any way making it begalor legal or giving it countenance and support nothing is said in the act of congress in reference to the rights of illegitimate children and if that subject was in the mind of congreso jon gres it would have been expressed and not left in doubt or uncertainty j courts do not favor the repeal of laws by implication and laws are never interpreted to repeal former laws u unless i iless the two are so repugnant that they cannot both be administered and allowed to stud U 8 vs 67 packages 17 how 86 85 bed apted rock vs henry U 8 fx ex parte cross dog U 8 P chew hew heong vs united states U 8 and certainly the same course of interpretation applies with t if not more force to the annulling of laws the law of the territory was wore before the congress and how much easier it would have been to annul the |
