Legal and Logical.

In the Third District Court on Monday, Jan. 29th, 1890, Judge Anderson delivered a decision involving the heirship of off-spring born out of legal wedlock. It appeared in full in the News on the day following. The claim of George H. Cope, son of the late Thomas Cope, deceased, by a plural wife, to a share in the distribution of the residue of the estate, was opposed by Janet Cope and Thomas Cope, lawful wife and son of decedent. The case came upon appeal from the Probate Court, George H. Cope being the appellant.

Judge Marshall had decided that the law of 1876, which gave all surviving children of a decedent the status of heirship, is invalid, because it is in conflict with the Congressional law of 162, that statute having been enacted for the suppression of polygamy.

Judge Anderson affirmed the decision of the Probate Court, adopting the same line of reasoning, holding that the statute of 1862 annulled all Territorial statutes that encouraged polygamy.

Probate Judge Bartch gave a decision in a precisely similar case March 4th. It was in relation to an application of the children of the late Orson Pratt by his plural wives, for a share of their father’s estate. Harmel Pratt, the administrator of the estate, opposed the application, while L.M. Waddell and B.W. Driggs, Jr, represented the applicants. It was admitted that these applicants were the children of Orson Pratt by his plural wives and that he recognized them as his children during his lifetime.

The decision of Judge Bartch was the antithesis of that rendered by his predecessor (Judge Marshall) and by Associate Justice Anderson. He held that the law of 1876 is valid and that the applicants are entitled to a distributive share of the estate.

No decision could be more clearly right than that given by the present Probate Judge, while, per contra, no opinion could be more preposterous than the ones mentioned which preceded it upon the same question. The highly seasoned absurdity of Judge Anderson’s alleged reasoning to the effect that the local statute of 1876 was invalidated by the national law of 1862 because it encouraged polygamy must be apparent when the Edmunds law of March, 1882, is considered in connection with that position. Here is an extract from it:

“Section 7: That the issue of bigamous or polygamous marriages, known as Mormon marriages, in cases in which such marriages have been solemnized according to the ceremonies of the Mormon sect, in any Territory of the United States, and such issue shall have been born before the first day of January, Anno Domini eighteen hundred and eighty-three, are hereby legitimated.”

If the odium of encouragement of polygamy attaches to the Territorial statue, it fixes itself equally upon the Edmunds measure, exacted expressly for the suppression of that marital system. Thus the latter act would be asserted as in conflict with its alleged solitary object and with itself. It does the same thing in relation to the offspring born outside of lawful wedlock as did the Territorial law—gives them the status of heirship. It went still further: it gave them the quality of legitimacy.

The position taken by Judge Marshall and Associate Justice Anderson is a legal absurdity on its face. The section of the Edmunds law quoted legitimates the offspring of plural marriages born previous to January 1st, 1883. Heirship and legitimacy are inseparable. It appears as if the two functionaries last named had forgotten the existence of the Edmunds act, or at least its special provisions. If this is not the case, it is possible that they preferred to swim with the prevailing current without reference to legal or logical consistency, to say nothing of the first principles of justice, whose administration is due to every man, woman and child, whether he or she, be Jew, Gentile or “Mormon.” While this is the right of all, without respect to age or condition, that species of contravention of the requirements of justice, presumed to govern the scales held by the blind goddess, which tends to take from children that to which they are clearly entitled, has an aspect of peculiar enormity.

We have, because we considered him at the time deserving of it, criticized Judge Bartch with some severity for what we deemed uncalled for expressions used by him outside of his official capacity. We are as ready to extend to him; or any other man, congratulations when he does the proper thing. While it was no more than his bounden duty to decide as he did, in these days of official degeneracy, with two decisions of a directly opposite character on the same question involved confronting him, it was to his credit that he elected to stand upon the law and logic of an important point, and told injustice and prejudice to get behind him.

[Deseret News, Mar. 15, 1890]

[transcribed and proofread by David Grow, Dec. 2006]


The Pratt Heirship Case
Decided by Judge Zane in Favor of the Lawful Children.
On an Agreed State of Facts.

The Numerous Side Issue of the Deceased—
The Property Involved in the Case Valued at About Six Thousand Dollars.

A very important decree by Judge Zane of the Third District Court will be filed with District Clerk McMullen today, it being the decision in the case of the estate of Orson Pratt, brought on an appeal from the Probate Court, where Judge Bartch decided that the children of the five plural wives of the deceased were entitled to a share in the division of the property known as block 111, plat D, Salt Lake City survey, and a very valuable piece of ground.

When the case was before Judge Bartch it was shown that Pratt had five polygamous wives, and that his legal wife was Sarah M. Pratt, deceased; that her heirs were Orson Pratt, Jr., Celestia L. Tyler, Laura, Harmel and Arthur Pratt and William Belding the minor son of Hermla Pratt. The children of the polygamous wives, thirty-four in number, set up a claim that they were entitled to the division because they were not affected by the act of 1868.

In submitting the case of the Court the attorneys submitted the records and papers of the Probate Court, together with an agreed statement of facts, which were to the effect that Pratt died intestate, leaving to be divided the property referred to.

The statement also admitted that Pratt at the time of his death had the plural wives referred to and the polygamous children. Also that Sarah M. Pratt was the first wife of the deceased, and that Orson Pratt, Jr., Celestia L. Tyler, Laura, Harmel and Arthur Pratt and William Belding, minor son of Herma Pratt, were her legal heirs. The statement also set up that the remaining thirty-four children were the children of the wives married after the marriage with Sarah M. Pratt, and that Pratt had acknowledged them as his children.

Judgment of the Court.

The Court in its decision reviewed the evidence from the Probate Court and the agreed statement, and holds that the act of 1868 has no bearing in this case, and that the children being of polygamous birth are therefore not entitled to any part of the estate. The statement agreed to by the attorneys is of such a character that the Court could not do otherwise than decide as it did, although the claim of the bearing of the act of 1868 has not as yet been raised in exactly the same manner as in this case. It is very similar, however, to two or three other polygamous claims, and unless some other method can be found it will appear that the offspring of plural wives cannot inherit their father’s property even though he may acknowledge them. This latter point was insisted upon by the attorneys for the respondents, as it was held to be good evidence that the parties mentioned were the children and therefore the presumptive heirs of the deceased. However, Judge Zane took another view of the matter, which is doubtless finally settled.

The property involved is one block from the Utah Central, next Lindsay’s gardens and near the cemetery. Its present value is perhaps $6000, which is an outside figure. Had the respondents in the case won the division would not have been more than $136 or $110 per head. At the present rate it is about $1000 each.

[Salt Lake Tribune, Aug. 5, 1890]

[transcribed and proofread by David Grow, Dec. 2006]

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