Show THE AMY aly CASE th of ako tko two of ill all cilot ht cuff elly eim how ii a chrt cliart arm kate joda MN woo a law rn fre mil of alis WAN wor mr witt melet elso la to rall vall tk the brov ta is wn wok I 1 Irria kiy lly oa ID loche the piolate court in and n tor for the county count of summit and of I 1 utah la in UN Q matter of tbt of f oscila A my dewed oscar A amy died intestate in this territory la in MIT may tw As honn movie by the th kui and aloe gl of this court ond nd on JUD june 1 annl amy W her pu pou aun in this oart jo 0 setu PC 9 ll 11 adji he 0 doa of MM A A mi id le teg gitig liiK among ottlia matters that the tbt the surviving widow of said aid d awa await c aued ased and nominated charles 0 whitte m 0 to as uie the person 0 to o whom he derd I 1 that letter letters of administration sho iIII bb be issued whereupon the lo 10 tit mail an order setting jun june 11 15 1891 as iba the day for or hearing uld said pell poll tion and directed notice to t tie given ireci la in pursuance pun unc of tits tie statutes it in ucb such cue case 0 on n jane june it 12 1881 1891 A LL batory uleda died a peti tiou in this abl cue cose cont contesting epting hie tile right of ild said jennie amy to letter letters of administration herein hertin alid iid alleging that the tile hid said emery was w a of said deceased mil and tl if lit at the said jennie amy visa nob flat the lawf it wife of the uld sald oscar A amy nt at the time of till big death if by reason of I 1 er having a firing and husband tit t tl tt e time of the marriage to said odcar A amy that lier tali husbands name we axa el elleott ott butterworth and who ht tit the tile time of I 1 er or laid said marriage to viny tiny wai was tatti and slid is I 1 now living ai tit it at franklin in the note of u idaho upon the tile tiling filing of raid maid petit petition lou die tits court directed to be b given mt june M the day tor for hearing ber lii the same aud and upon the last named flamed day wa was granted upon affidavit affa of contestant until july if 15 1891 oa on J july uly 15 1801 1891 the case colli K g on relief regularly ia r fly lr to be heard the facts of tha the death death of A amy residence and nil other jurisdictional facts being first proven jennie amy testified that she bo waa was the surviving wife of the said oscar A amy deceased I 1 abing been roamed married to laid said amy at salt lake city la lit this territory on the esth day of april 18 1880 and on 0 cross cro admitted that the she was wa mar ried to ald said t P mott butterworth but that she had obtained a divorce from as laid I 1 4 butterworth in the probate court of at Washington county utah territory prior to her marriage murr lage with ili the old oscar A amy the contestant offered in arid erl dence enco what purported to be the records of the bourt of at 11 ah ash ington county atall tu lit tl ti a else june jone butterworth ve v elliott duller wurth worth and ad the matter herein herti it was wa taken on ou august 5 I 1 1801 before deciding W who ho war entitled to leters ll let tr of adain tion abells tout louif g filed her petition praying for letter letters of tra IUD in fit said cause and alleah I 1 tl it at at 1 6 wasilie maternal matei Dat aunt of aid said flocard A 18 mt 1891 mastbe day let set for hearing a continuance be ing lii had on that day until sept 0 on tit the lat last named earned day the matter herein waa was heard and by agreement ont lit charlea at I 1 es 0 wl WI It temore and A if ero em cry were appointed the brot publication or of notice to creditor in laid estate wui was published oo 00 october st 26 1891 it lie a inventory of 0 appraisement I 1 abing beet duly duty mad wide and returned to the ourt and all the jet interlocutory ciders usually made in su chesses having been made herain and ihu the account accounts rendered and ap op proved and slid that more motto t inn ian at 01 a year hu has lines since the first publication of 0 notice to tl it e respective petition petitions of mil all the herein for distribution I 1 ave aye bee i died fled it tol and legal notice oc of tt if 0 time alm and I 1 lace let set for forbearing hearing have been made ut aid d the tile matter I 1 ai as now come on for hearing hearlin hear lii jennie amy ireys ray in tier her petition that the whole of laid said estate be di distria strib buted to her bar as the wife of the said oscar A amy and that said id aroy amy died intestate and left no issue tather mother sister or brother adella I 1 our oung fordys in her petition for distribution that the whole of 0 said ld estate be distributed to toben herself elf Led ledell erile I 1 OMS oung and delecta glasten by reason of their being maternal aunt aunts of the laid oscar A A my and they being the lawful heir heirs and next of sin kin tohaid to all if SO ed royal 1 A anay ivy Ir ancl 1 L jackion jackson ellen it 11 smith mary blary A claynes and M flirk irk on may blay 21 26 1803 1892 filed tied praying that the whole of ald said estate be distributed to them b by I 1 reason of their being brother and 1 to of the half halt blood to the laid said weer A amy dec recessed essed jennie amy testified tl it ht at her malden name wa leas jennie arigi t and tl tj at ahe she WM wait married to tillott tl llott butterworth about sixteen years ago and that wai was the Is iam santo jane butterworth that applied tor for a divorce from elliott flutter worth in the probate court of wash ington county utah in to ll 11 ai ili d that the be saw elliott butterworth lait loat turn sum mer met la in biml and that alit ih wai was married at virginia city ity in the louthern lout sout Lern Leru part of utah territory by a of the church of jemi jesus lariat of latter day saints and that the he lived with batter better worth u hi wife for about sli week weeks itne that she waa wait married to oacar oscar A amy on april 6 5 1889 1884 at lit salt I 1 axe ike city utah lnor acott amy tes titled that wa wait married til to dustin amy in 1810 1830 anu and that royal 11 aroy amy francis 1 L jackson ellen men R and mary ilary A lillue wen were the to tali of 0 their said muria marriage and that sable A clark w was th their 0 it grand and that oscar A amy was wait the kin son of raid said dustin amy by another wife named I 1 avire smith and land that in dustin amy ten lert her bet in to council bluffs loway and cam me to salt lake leis city utah and that in IBM she he obtained a divorce from said dustin AT amy in to the trtat ot of iowa an and d that in IM she he came to bait lake city utah ahl remarried dustin amy and took him hire back to council bluffs T 7 tway way with iier her that year in IM and 1 A t they both lived together in I 1 council niara loway lower until IPA when aid said duskin amy died mr wr Le logrando Let rande grando bonar on behalf it of Adi adal plit young sk mounir and do lecta marten submits the former festl ampy of airella in this ruf ease serij it wait r of maternal mate nuil aunt aunts of at aar A amy dc do ceased they being sister a 0 or t tha the fiill mood blood to tha the mother of said 11 ll amy de dt ceased the first question to be considered is 1 was ra the plaintiff jennie amy the lawful wife of A amy at the time of tila his death iloth parties tic dc foud fondant fen dant ants contend that the she was not and rely on the records of the I 1 rebate court of county utah in the ease of jane vo eliot hot butterworth mth in 14 support of their apropo mitlon the herein referred to conten cont ln only the complaint affidavit tor for of summons lumi noni and decree and both seth A tie tl e clerk of the probate court of washington county altah on the th day of an alt gust 1891 that the above li Is fie tits whole hole record in maid eue cause and that he lit wi w 1 deputy clerk of said probate court at the time 11 me the above decree wai was granted on oil bep september 3rd ard tl TI ey contend ft ll at in tb the absence of an order of court for the publication of the a im ire mons and ind the summons in the said bufi of df butterworth Batter worth butterworth the decree therein loss ai absolutely told and that jennie amy the plaintiff herein never sac ac the lawful wife of 0 aid said airy deiv deceased ased and that at hie tile time of the marriage to said amy she was woe still t tie is lawful wife of the paid elliot butterworth Buttar worth and that before she sh vi would be entitled to any distributive share of the estate of said amy sl A a must show affirmatively to the satisfaction of the court that she li is a law lawful flit heir the attorneys tor for jennie amy con cot tend that the t rebate court of wash ington county utah j tall was jl court of record on ue tie 3rd ard day v of september bep 1879 tho the day on which bleb said decree wai was ranted granted ID in tie CUD case of butterworth Butter But orth north TS j butterworth and that the tb proceeding proceedings had in lit suld said court are r tu entitled titled to 10 abs bs I 1 it verity and be questioned ill a collateral proceeding proceed log unless anle some furl part of tl if a record show allow 48 u ot obtained las lite f t their oillion her they cite 11 a case at of clatin vi to kelly kt liy 34 tal of I 1 sale TI ve lower levi er 21 N E wp amli 1000 I 2 looper t vs sun still dorland dr dor luid laud 3 1 lux on tt a I 1 19 off ees vs v bat jr et ua 41 they faither contend that where a court i 0 f accord has ba passed upon the orl devell or proof of service er irle and found round the same mei it I 1 Is 01 elusive on coll attack aid cite severs slit null oriles i i out port purt tl if ret I 1 lief hey rely to a gre it extent oil ou tl e c lap too of vs kelly supra I 1 11 I 1 support of their ewe caw especially on page bete the learned judge 1 if I a 4 pin pill ion taji in care case of by aubil caboni caU oni the th of the printer litotes that the luminous summons wai wait 1 blushed it on one mouth slid aej tits wert in fit it judg ingot states tate that it was publish ed three li 1 that service lei vice bad tied been made upon the defendant it will ft he to that other proof than tl 0 at contained ID its the alti judgment roll wn was made for I 1 ot to to 10 prea imia would be to deny tl ti e record that absolute veri verity tyvi I 1 id felt in inuit be nr lie corded to it they I 1 etther I 1 old the lite fact tl tj at the tile summons and order tor for do not appear among the lie HIM biel la is not ilot ma bertal their they are presumed pret umed to have bern been loit lost abd to have been regular in form and cite I 1 reeman on void told J uricial jud lilal mid sales page 17 set 8 Il hurley tirley vi vo bernard as W rex 83 87 ba lisbury vs bat braids do 2 2111 D 11 and they the also holt hold tl if at the recitals ID in the decree are conclusive and cam cani ot be colla collater terly lT attacked I 1 ahe he defendant defendants cou contend tend that jennie amy never wai wits the lawt it wife of laid said oscar A amy became because she anotle a not no tle to tally gaily divorced from allot butterworth althe time of her majr mairi lage alre to amy and lo 10 support of their posit fou to the tits effect that DO service of summons wu was ever had oo 00 the defendant billot bute ter worth lu its tie divorce proceedings proceed therein that only constructive service wu was had and in ill such c the 1110 tatu tc must be b strictly trl etly p pursued inked and alt aeo pio pier to areen ja I 1 it 11 1 cri lulOn a jonea jones 11 1 it tun lite ill lit atou TO 11 belch t law it trin 13 I 1 hey hold that there must ile I 1 an sit order of made for the publication of at sum luoin alone ioni and ana coteil the cases of calpin to T lege 1 fe IS 18 vail wall I vi vs sullivan 97 V U S 44 W 1 Li kerley vs blayton I 1 IOU 8 MI they also 10 lo cunteri d that tl if ere never wu wait a statute in thin this that su u theorized thorl ted zed r P I 1 court ther therein elit to grant great a 4 alv ill rie to unless oy or personal ler ser vice had on it tie 6 defend defendant at I 1 it blat at th tit statute prizing servile by publics tion appele lipp ileo only to district at d justices coulta ai d cite the tile mail statutes in ill i 6 Ifil lort ef of tl elf oll I 1 have has examined nearly a I 1 tl ti a cure cited by tl 0 a plaintiff a attorney attorneys in lit re lation to the I 1 laurie of this territory blo being courts of record and general jurisdiction in IBO ai ili d fall fail to ice see any or rule laid down to support their proposition the lorn am piled laws of utah on ott VS 28 1 3 denning defining tl ti a 1 of pro pr bate courts states that the probate this territory shall have jorli i diction of the eue estates of decan stil pel pep on in the minner manner m inner provided for in lit A md purs to till this act at 4 on pk va SUS t MC see of the same volume reads alt ali orders at i il decrees mad mado by tie tl e probate courel cour ishall be e at length in I 1 tie it minute book of 0 tit the c itil tl a judge rhall silie loii tile nit kilt i itei at of tilt proceeding in its referring to ti tie records and end pro ceolla g Is of the I 1 rotate bourt of A mb sell ington utility utah in the total ameul of 11 uti vs I 1 tall fall to lit 4 any order for tha the it ibelli tion of summons or aill minute of tile ti court ref reverting erting thereto and the th makil mali 9 of 0 luck suck an n order by the judge and nd recording the same on the biou let of ow bi court by tl the clerk clork to me mo apling marada tory to complete the tile j at of hr use court over his the fotiou mon of tits it in that CM cut tl i to 6 ir be followed in mt calls of p aff summons tuni meni r rolert y to the axi tract court I 1 of this to f tit cry and nd to I 1 courts ti brelo a aid 4 nowhere do they refer to or confer center any power on I 1 lobate court courts i to authorize the tile service of summons by publication I 1 km am of the opinion that the lite I 1 lobato pu ri irti of 0 this territory are courts of halted ila tied jurisdiction and are ewsii kwa il of no those expressly conferred on liem the service of unini onsby by publication was anki own owl to common 1 low in at 4 it belt g i a en cri store or of the tile stat ute the lie provisions of li ill statute must be strictly purel pursued led As A I 1 understand the rull of law to ba be in ili of estates that a person claiming 4 tile share liar hereof plant allow to the court that ther are tire a Is lawful tot heir they must show t that hat am r ma if r ey I 1 there Is i no of unless in can cost i a wl 1 pro a inn anti or daggi ter claims to be b a son or dit of their father and in auch such cases the th 1 alo i li in favor of butchen ciul when person kinei in aid id clairia from rote a collateral source as it wife of itai tt Is bo ind slid to show a valid marriage CLI y and prerequisite to this that il it WM was cam potent to perform such ceremony lo bo 10 that in this case I 1 must hold that the defendants are not attack attacking ing her mar rings to I 1 i my in tit a collateral collitt cral it li Is a direct proceeding I 1 11 I 1 bilitch site 1 li bound to allow her right to li it herit I 1 hold tl at t tl ti a said lit jennie amy wai was not the I 1 maul wife of oscar A amy lit at tile time of lie death sell her petition for distribution herein will ill be b therefore drilled denied in considering tile matter between the maternal aunts mid the tl brother and sisters iter of I 1 r P half alt blood of said A anny myr it it may be appropriate to tte state the tile source from wl irh ich tt t 0 bali 0 of A amy dented derived 11 I 1 title to tile property efty erty that h ia now low in ill 1 in this action w I 1 he lie kli kit dicia of tl if e ha ii f alja of said Anly offered in ili evidence a coy of an instrument under tinder teil hid it d u it 01 edfred p irl ir orting to convey f from rum 1 Is i I 1 to I 1 eyl ra amith U res rods of ground fronting on the bait and run 11 ing then e vet west liven eleven exl r me |