France v. Connor

• Decision Date: 02 March 1896
• Docket Number: No. 68,68
• Parties: FRANCE v. CONNOR et al
• Court: U.S. Supreme Court

161 U.S. 65

16 S.Ct. 497

40 L.Ed. 619

FRANCE

v CONNOR et al.

No. 68.

March 2, 1896.

This was a petition for the assignment and setting off of dower in lands in the county of Carbon and territory of Wyoming, filed April 1, 1889, in the district court for that county, and alleging that the plaintiff, on February 7, 1887, intermarried with James France, then and until his death a resident and citizen of that county and territory; that he died August 21, 1888, intestate, leaving the plaintiff his widow, and having been seised during the marriage of an estate of inheritance in lands situated in that county, and fully described in the petition; that upon his death the plaintiff, by virtue of the marriage, became entitled to dower in these lands, which had never been assigned or set off to her, and which she had never received any compensation or equivalent for, or at any time lawfully released her right to; that on March 16, 1888, he, being insolvent, made an assignment, according to the laws of the territory, to the defendants, for the benefit of his creditors, of all his property, including these lands; and that the defendants took and since held possession of these lands, and refused to assign and set off to the plaintiff her dower therein. The defendants filed a general demurrer, which was sustained, and judgment entered for the defendants.

The plaintiff filed a petition in error in the supreme court of the territory, which, upon the admission of the state of Wyoming into the Union, was entered and argued in the supreme court of the state, and the judgment affirmed, upon the ground that the act of congress of March 3, 1887 (chapter 397, § 18), did not apply to the territory of Wyoming. 3 Wyo. 445, 27 Pac. 569. The plaintiff sued out this writ of error.

Chas. N. Potter and A. B. Browne, for plaintiff in error.

Samuel Shellabarger, for defendants in error.

Mr. Justice GRAY, after stating the case, delivered the opinion of the court.

By a statute of the territory of Wyoming, passed December 10, 1869, and embodied in the subsequent codes of the territory, 'dower and the tenacy by the curtesy are abolished, and neither husband nor wife shall have any share in the estate of the other, save as herein provided.' Wyo. St. 1869, c. 41, § 1; Comp. Laws 1876, c. 42, § 1; Rev. St. 1887, § 2221.

The single question in this case is whether this provision of the territorial statute has been annulled or superseded by section 18 of the act of congress of March 3, 1887 (chapter 397), conferring and regulating the right of dower; or, in other words, whether this section applies to the territory of Utah only, or extends to all the territories of the United States. In order to determine this question, it becomes necessary to consider the scope and the connection of the various parts of the act. 24 Stat. 635.

The act is entitled 'An act to amend an act entitled 'An act to amend section fifty-three hundred and fifty-two of the Revised Statutes of the United States, in reference to bigamy, and for other purposes,' approved March twenty-second, eighteen hundred and eighty-two.'

Sections 1 and 2 relate to testimony in prosecutions for bigamy, polygamy, or unlawful cohabitation. Sections 3-5 define and punish the offenses of adultery, incest, and fornication. These five sections do not mention the place of commission of any offense; and may perhaps be held to include 'any territory or other place over which the United States have exclusive jurisdiction,' since so much of the act of March 22, 1882 (chapter 47), referred to in the title of this act, as defined and punished offenses, expressly included any such territory or place. 22 Stat. 30. But upon the question whether such provisions apply to the District of Columbia there have been conflicting opinions. U. S. v. Crawford, 6 Mackey, 319; Knight v. U. S., 5 App. D. C.——. And we are not now required to determine the application of those provisions of the act of 1887.

The next three sections of this act are in terms limited to the territory of Utah. Section 6 relates to the institution of prosecutions for adultery, section 7 to the powers of commissioners of the courts, and section 8 to the powers of the marshal and his deputies as peace officers.

Sections 9 and 10 relate to evidence, by certificate or otherwise, or marriages 'in any of the territories of the United States.'

Section 11 disapproves and annuls all laws enacted by the legislature of the territory of Utah, providing for or recognizing the capacity of illegitimate children to inherit or to be entitled to any distributive share in the estate of their father; and enacts that no illegitimate child shall hereafter be entitled to inherit from the father, or to receive any distributive share in his estate, unless born within 12 months after the passage of the act, or made legitimate under the act of congress of March 22, 1882 (chapter 47, § 7). See Cope v. Cope, 137 U. S. 682, 688, 11 Sup. Ct. 222.

Section 12 disapproves and annuls all statutes of the territory of Utah conferring jurisdiction upon the probate courts, other than over estates of deceased persons, or over guardianships of the persons and property of infants insane persons; and transfers the jurisdiction so withdrawn to the district courts of the territory.

Section 13 directs that proceedings shall be instituted to forfeit and escheat to the United States property obtained or held by corporations in violation of the act of June 1, 1862, c. 126, § 3 (12 Stat. 501), or of section 1890 of the Revised Statutes, each of which provides that 'no corporation or association for religious or charitable purposes shall acquire or hold real estate in any territory, during the existence of the territorial government,' of a greater value than $50,000; and that the proceeds of the forfeiture shall be applied to common schools 'in the territory in which such property may be'; but that houses of worship, parsonages, and burial grounds shall be exempt from forfeiture. The terms of the acts referred to, as well as those of the section itself, show that it extends to all the territories; and section 14 provides for the discovery of documents in such proceedings 'in any territory of the United States.'

Sections 15, 16, and 17 disapprove and annul the acts of the legislature of the territory of Utah, and of the so-called government of the state of Deseret, creating or continuing the Mormon corporations known as the Perpetual Emigrating Fund Company and the Church of Jesus Christ of Latter-Day Saints. See Late Corporation of Church of Jesus Christ of Latter-Day Saints v. U. S., 136 U. S. 1, 10 Sup. Ct. 792.

Then comes section 18, relating to dower, the extent and effect of which are now in question.

Then follow seven sections, each of which is restricted in terms to the territory of Utah. Section 19 requires the judges of probate in Utah to be appointed by the president of the United States, with the consent of the senate, and annuls the laws of Utah providing for their section by the territorial legislature. Section 20 makes it unlawful for women to vote at any election in Utah, and annuls all laws of Utah providing for their registration or voting. Section 21 annuls all laws of Utah providing for numbering or identifying the votes at elections. Section 22 abolishes the election districts and the apportionment of representatives established by the legislature of Utah; provides for new election districts, and a new apportionment; and declares that none but citizens of the United States shall be entitled to vote at any election in that territory. Section 23 temporarily continues in force in Utah provisions of section 9 of the act of 1882, concerning the registration of voters and the conduct of elections. Section 24 requires of voters, officers, and jurors in Utah an oath to obey this act and those of which it is an amendment, and disqualifies those convicted under this act, or under the act of 1882, or guilty of polygamy or of cognate offenses. Section 25 abolishes the office of superintendent of schools, created by the laws of Utah, requires a commissioner to be appointed instead by the supreme court of the territory, and prescribes his duties.

Section 26 (which might, perhaps, have been more appropriately inserted after section 13 or 14) provides that all religious societies may hold, through trustee...