Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-03-07
TIE RECENT HEIRSHIP DE-
CISI0NS.

Ok wednesday last the News
contained an article in reference t.
n Probate case in which the helm
of the late Orson Pratt were the
prircipals. Judge Bartch decided
that the law Of 1876, which gives all
children born out Of legal heirship
who were recognized by their
parents during the latter's 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
sound and sensible. 1t was shown
in the article that the same view
could not be consistently taken Of
the decision OF Judge Anderson, in
the case Of Cope vs.. Cope, in which
the same point was involved.
The latter opinion affirmed a judg
ment entered in the Probate Court
by Judge Marshall. In that affirma-
tiCn Associate Justice Anderson de-
clared the Territorial statute Of 1876
invalid, because, in giving the
status Of heirship to children born
out Of legal wedlOcl5, it encouraged
polygamy.
showed that il such encourage
ment was given by the law Of 1876,
it was more empbatically rendered
in the Edmunds law Of 1852, which
legitlmated all children born in the
pOlygamous relation up TO January
lst 1888.
1t 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 aspect. The last
named :unctionary sustained the
law Of 1876 rs valid, but claimed
that there was n period dating from
1862 to 1916 wherein all children
born out Of legal wedlock were
barred from heirship. This vacuum,
it was claimed 10y him, was created
in this way: In 1852 4 Territorial
law was enacted and approved sim
liar TO that Of 1876, with the differ
ence that the former measure gave
children born out Of legal marriage
tho status Of heirship whether or
not they were recognized by their
parents during the life Of the lat
ter. Judge MARSHALL held that
this law encouraged polygamy and
was therefore annulled by the con-
gressional anti-polygamy law OF
1852. Hence that from the last
named year till the statute Of 1876
was enacted, illegitimate children
born within these dates had no
heirship rights.
This explanation is made simply |
that the position Of Judge Marshall 4
may not be misunderstood. 1t ap-
pears that the applicant Cope, the |
son Of the late Thomas Cope by a |
plural wife, was born in the interim 1
defined by Judge Marshall, other
wise the Latter would have granted |
the application. But We slll hold |
that his Honor was in error, be- |
cause we cannot see that any |
such interim as the ore referred /
10 existed. The law of 1852 was 4
in exact line with that Of 1875. win |
the exception that in the former
recognition Of Legitimate children
by their parents was not made an
element TO ensure heirship. As
polygamists invariably recognized |
their children, the intent Of the
measure was evidently to cover all |
cases, including the issue OF spora-
die sexual commerce, where parents
are not usually ready to acknowl-
edge their progeny. Besides, the
Congressional law OF 1882 (the Ed
munds Act legitimsted all issue Of
Polygamous marriages bo!n pre-
vious to Jan. Ist, 1888. Conse-
quently it bridged Judge Marshen,s
vacuum.
1t may be held, in controversy, |
theat heirship and legitimacy are
distinct conditions. They are, how
ever, intimately related. Fer in-
stance, OF what particular good
would the solitary beueficent pro-
vision Of the Edmunds act be to the
benetciares-children not in any
way responsible for the conditions
OF their birth-if It simply placed
upon them the legal stamp Of Iegiti-
macy without relating to any ofthe
rights or privileges growing cut Of
that status? 1t is not to be pre-
sumed that Congress, and especially
The grim author of the bill.
had any thought ofgiving the child ;
rem born within the plural marriage
'ystem a merely sentimental stand
ng. The Territorial statutes of 1852 ,
md 1876 were plainly in line, in this :
particular, with the anti-polygazny
aw OF 1852. Consequently, although !
Judge Marshall did not go so far as
Judge Anderson, he was, in our :
Judgment, in error in the case in 4;
question.
POINTED STATEMENTS. 5