Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1891-01-27
poI,yGAMOUs CHILDREN.


a., tsq7-october Term, 1880.
III. Cope, appellant, vs.. Janet
ueO' ,,d THOMAS II. Cope. Appeal
c .,'p' M, he supreme Court Of the Terri
,ory Of Utah.
VI Ij.uuAry 10, 1911
raj. was an appeal from n decree OF
,,l ,a originally pronounced by
~. p,ob,,e Court Of Salt Lake coun.
v, Wv .sl,med by the District Court OF
y rsIrl Judicial District OF Utah,
'n' wv ,g,ln By an equal division OF the
s w. Court Of the Territory.
rAo ole question presented for con-
,, -. was, whether George ii.
S s.' ,ho iIlesitlmate child Of Thomas
~. ~. .,. under the facts OF the case,
y. bslr Of Thomas Cope, deceased.
y, ~. andlng Of facts, 40 far us the same
A.. M material, was as follow"
That Thomas Cope, deceased,
~ .,sslt Lake County, Utah Terri
hea ,n,,siate, on the - day ofAugist,
w Iasying certain real estate therein,
lso'i,.c,ipilon Of which IL lmmnterial.
Joy rhat aid Thomss Cope lcft at
,..,,,,s AZ hid death surviving him,
i,rst Core, his lawful wife, rhomn
Il core, his only legitimate son, anu
-. ~. -, N, Cope, his illcgitimate son by
w.,ssr,t Cope, his polygamous or
1 i,,si wife aud that the marriage OF
s.s,d deceased with Margaret Cope
.., Contracted while the said Janet
Go Wa the living and undivorcei
yIIe Of said deceased. .,-,
AMI As conclusions OF law the court
kundl .td
Thomas Cops, deceased, are Janet Cope
md Thomas II. Cope, who are alone
sntl,le,i 10 share In the distribution OF
nv ss,a,e Of said Thomas Cope, and
,hst iii The real estate above mentioned
s.sssnded TO and vested In said
i,ns, Cope and Thomas II. Cope, sub
III 10 the administration upon such
estate. T., =, ~. l.
rot An heir Of said Thomas Cope, de-
s.a.el, and not entitled 10 any share
AZ aid Thomas Cope's estate.
Mr. Justice Brown delivered the
oplnlon Of the court.
The appellant, George II. Cope, who
Il admitted 10 be the illegitimate child
a Thomas Cope, by Margaret Cope,
N. polygamous wife, claims the right
10 Inherit a share Of his fathers estate
under a territorial statute OF Utah,
enacted I'm 1859, which provided as fol-
lovg "sectlon %. Legitimate child
rem and their mothers inherit In like
manner las legitlmnte "from the
father, whether acknowledged by him
"a not, provided II shall bc made 10 ap.
pear 10 the satisfaction OF the court
hat he was the father ofsuoh illegitim'
Ate child or children"
While this statute IN an innovation
upon the common law, and In some
PARTICULARS n novelty In legislation, we
perceive M objection 10 its validity.
BY section 0 Of the act Of September .,
1850, o Stat. at Large, i53, establishing
q territorial government for Utah, II
kpfoyidcdi "fhat the legislative power
" fIu ititiDf1 rhhh NAe'ha w MI
fightiul subjects Of legislation, con.
Iis,ent with the Consultation OF tho
United siatss and the provisions Of this
act; bu, no law shall he passed interfer-
Ing with tho primary disposal Of tho
soll; no tax shall be- imposed upon the
property u the United States; nor shall
The lands or other property Of non.resi-
denh be taxed higher than the lands or
other property Of residents. All the
laws passed by the legislative assembly
an. governor shall be Submitted 10 the
Congress Of the United States, and, u
dlsappfovcd, shall lie null aud OF no
ELECT" With tho exceptions noted In
this section, the power OF the Terri
iotial legislature was apparently M
plenary ~ that Of tho Legislature OF
asiaie. Maynard vs.. Hin, lbs u. y.
lQi. The distribution Of and the right
u succession 10 the estates u deceased
pefsons are matters exclusively Of
state cognlEancc, and arc such as were
within the competence Of the Terri.
tfial legislature 10 deal with II as II
sAw III, In the absence Of an Inhibition
ty Congress. Indeed, legislation Of
similar description Is by no means un-
precctented. BY tho laws Of many
State. natural children are permitted
70 inherit from the mother, and also
from the father In case Of the after
marriage Of their parents, or where
here are no lawful children, or where
an adoption IA made In due form, or
where recognition Ia made by will.
And II the question Of paroniage DO
satisfactorily settled, there would seem
v be power In tho Legislature TO endow
even tbs children Of an adulterous In
nfcoure with Unbeatable blood from
~ father.
Legislation admitting iiicgilimate
ehliurrn 70 the right Of succession IL
undoubtedly In detogation Of tho com.
mon law, and should To strictly con.
nrued, and hence II has generally been
noii That laws permitting such
chlldren, whose parents have since
married, TO Inherit, do not apply 10 the
irlits OF an adulterous intercourse.
n Va sans Executors, SO Ky. 1905.
hul, while II Ia tho duty OF the courts
70 put construction upon statutes,
Nhlch shall, 10 far "a possible, be- con.
DnAht with good morals, we know OF
no regal principle which would author
70 US 70 pronounce q statute of this
AND, which Ia plain and advantageous
up9n ia lace, void, by reason Of It's
isiufe 70 conform 10 our own stand.
am o. social and moral obligations.
n'utes are ms competent ~
eonfts 10 deal with these sublects, and. in
nAlng a standard Of their own, are be-.
}onu our control. Thus In Brewer,a
i.s.see y, Blougher, IA Pet. l7s, los, n
''l', sald by Mr.. Chief Justice Taney,
, pviItAlng Tor this court, that the ex.
.lieney and moral tendency Of a stint.
~ lhw was n question for tue leeisIa.
80 ana not for this court; and II was
Nh IN That case that statute OF
'MaaIyland, endowing illegitinate chi.
a .,,oh WIN inherltnble blood, applied 10
' suon a. Were the offspring Of an In.
''s!uous connection.
.o =. j. true that the peculiar state OF
,ocie'y existing at the time this act