The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1906-08-26
One of the Most Interesting
Ever Handed Down in
Utah.
LAW AS TO ILLEGITIMATE
CHILDREN IS CONSTRUED
Case Is a Noted One; Brought
Up From Cache
County.

tuc matter OF bne estate OIL JOun l.
Carr, deceased, which rcvcrses the judg-
ment of the lower court, is one of the
most interesting opinions that has been
handed down in this State. The ex-
planatlon of the case at bar. as taken
from the written opinion, is as follows:
"John Y. Carr, died intestate in
Cache county, October 3, 1900. Decem-
Der 30, 1900, one Of the respondents
in the present action was appointed
administrator of the estate and has
been acting in such capacity ever since,
June l, 1908, the administrator filed
n petition for distribution in which he
alleged that the brothers and sisters
and ISSUE of deceased brothers and SIS
ters were the sole heirs-at-law of the
deceased and prayed that the decedent S
property be distributed among them;
that The administration be closed, and
that he be discharged as administrator.
June %, 1908, Elizabeth Ann Carr,
guardian of the persons and estate of
Merrel, Mia, Johnny ID, and Deloris
Carr, they being the legitimate minor
children of the petitioner and one
Johnny Carr, deceased, fled an answer
and cross petition in which She denied
that the collateral kin, mentioned in the
administrator s petition, are heirs-at-
law of John 7. Carr, deceased, and al
legged that Johnny Carr, deceased, the
father Of the minor children mentioned,
was the illegitimate son of the decedent,
John Il. Carr; that the minors are the
decedent' g grandchildren, and prayed
that the decedent's estate be distrib
uted TO them.
Both petitions were heard together,
and the cause was finally submitted
for decision and by the court taken
under advisement on July 10, 1908. On
December 10, 1904, the court found and
held that the collateral kin are the
sole and only heirs at-law of John T.
Carr. deceased. and decreed distribution
of the estate to them. Thereupon the
cross petitioners prosecuted an appeal
and assigned various errors.
Opinion of Court.
II appears TO be admitted says the
Supreme court in ,s opinion, that John
T. Carr, deceased. was an unmarried man,
q bachelor that the petitioners
claimed to be his grandchildren by rea-
son of him having an illegitlmate son,
Johnnie Carr. the father OF the cross
petitioners. by an Indian woman. name
unknown. In the pioneer days In Cache
county. that the said alleged son was
half breed Indian: that the persons to
whom the estate has been decreed by
the trial court are the collateral kin OF
John T. Carr, deceased in case Johnnie
Carr, deceased. was not John T. Garr's
son; that Johnnie Carr, the alleged ille
gtimate son. died intestate, in the year
1896, prior to the death OF his alleged
father, and left surviving him his widow,
the guardian. and four minor children,
the cross petitioners.
The first question presented for deter
mination Is whether the evidence. taken
altogether. established the fact that
Johnnie Carr was the illegitimate son OF
John T. Carr. The court found and held
that the paternity OF Johnnie Carr was
not established. and counsel for the re-
| spondents insist that there Is some con-
| Hict in the evidence, and that the trial
| court, having heard and observed tho
! witnesses upon the stand while testify
| ing, this court ought not to disturb its
| holding on this point. These reasons for
| the well-known rule invoked, however.
even If the rule applies to probate pro-
| ceedings. lose much Of their efficacy
| where. as here. nearly year and half
| elapsed from the time of observing and
hearing the witnesses before the decision
| of the case.
Where q case is held for such length
| of time under advisement. as in this in
stance, we apprehend that the advan-
| tages which flow or ought to flow from
observing the manner and bearing Of the
! witnesses while on the stand will
through the trial of other causes and
the transaction OF other business, have
become well-uich vanished, and that that
| court, when II finally passes upon the
matter is in little, IL any, position to
weigh the evidence than are we. But.
| however this may be. upon very careful
examination and consideration OF the evi-
! dence presented in this record, we are
unable 10 sanction the finding and hold
ing Of the court upon this point.
Testimony Is Reviewed.
| The opinion quotes much OF the evil
dence given at the trial, among which Is
| that OF the witness Dowdle, now an old
man who says John II. Carr was known
! by the Indians at that time as "Nampa-
wammock." Dowdle met the young squaw
carrying the pappoose, the half-breed
Johnnie Carr, and asked her whose child
| it was. She said: white man, Cache
valley" He asked her what white man.
| She replied; "Nampawammock." This
was told 10 John T. Carr, who, IN effect,
admitted the accusation.
Another OF the witnesses quoted In the
| opinion is Mrs. Campbell who was at
! marry John T. Carr. She testified that
John T. Carr told her that duty com
PEELED him TO always keep the pappoose."
because "a father is always supposed to
take care OF his own children" She re-
piled. You think I would ever marry q
man that was father to an Indian" Con-
tlnuing, she testified: And we quit on
|
Carr never married. but always cared
for the young half-breed and reared him
as his son. Against this evidence the re-
| spondents offered evidence to the effect
chat one of decedeDts brothers. for him.
bought the pappoose from its mother for
a pair of blankets. The opinion, how
ever, holds that upon close scrutiny OF
and in answer to the testimony relied
upon by the respondents to uphold the
| action Of the court, 1t may fairly be said
| that such evidence tends but to show
that John T. Carr. having fallen into the
commission OF disreputable offense with
an unfortunate girl of inferior race, he,
as member OF family mingling In So
| cial intercourse and possessed OF COM
mandng influence In the community. was
| desirous of concealing the disgrace which
his kin would naturally feel II he dis
closed to them the real facts by delib-
crate acknowledgment ."
Conclusion of Court.
The conclusion, upon all the evidence
in the case, the opinion says, Is irresist-