In re Handley's Estate

• Decision Date: 28 June 1897
• Docket Number: 94
• Citation: 49 P. 829,15 Utah 212
• Parties: IN RE HANDLEY'S ESTATE
• Court: Utah Supreme Court

49 P. 829

15 Utah 212

IN RE HANDLEY'S ESTATE

No. 94

Supreme Court of Utah

June 28, 1897

On motion for rehearing. For former opinion, see 24 P. 673.

The suit was instituted a number of years ago by the plural wife and her children against the estate of Handley for a share of the property of the decedent. The probate court, the district court and the supreme court of Utah all decided the case adversely to contestants. An appeal was then taken to the supreme court of the United States, and the appeal was dismissed on jurisdictional grounds. (See Chapman v Handley, 7 Utah 49; and Chapman v. Handley, 151 U.S. 443.)

At the time of Handley's death, May 25, 1874, there was among the statutes of Utah a law providing that illegitimate children and their mother inherit from the father. This is the law of 1852, which we have before mentioned. Also at that time the congressional anti-polygamy act of 1852, which annulled and vacated all laws of Utah which established or countenanced or encouraged polygamy, was in force. The sole question involved in the former decisions of the Utah courts in this case was whether or not the laws of congress of 1862 annulled the Utah law of 1852. The courts decided in this case that they did annul it.

In 1884, the legislature of Utah passed a law providing that every illegitimate child is an heir to the person who acknowledges himself to be its father, the same as if born in lawful wedlock. Comp. Laws § 2742.

Chapter 41 of the laws of 1896 provides that section 2742 of the Compiled Laws of Utah (originally enacted in 1884), included when enacted, and at all times thereafter, effectually operated to include the issue of bigamous and polygamous marriages, and entitles them to inherit and that in all cases where any court of Utah has decided adversely to such issue a motion for a new trial shall be entertained without prejudice from lapse of time.

Judgment denied.

Sutherland & Murphy and J. W. Judd, for petitioners.

Cited Converse v. Burrows, 2 Minn. 191; Sampeyreac v United States, 7 Pet. 222; Cooley, Const. Lim. p. 461; Ex parte McCardle, 7 Wall. 506; Cope v. Cope, 137 U.S. 682; Davis v. Ballard, J. J. Marshal 572; Alvord v. Little, 16 Fla. 158; Page et al. v. Matthew's Estate, 40 Ala. 547; Graves v. Graves, (Ky.) 2 Bibb. 207; Henderson & Nashville Ry. v. Dickinson, 17 B. Mon. 173.

Dey & Street and W. H. Bramel, for respondent.

Cited: People ex rel. Ins. Co. v. Jenkins, 16 N.Y. 424; Reiser v. William Tell Ass'n, 39 Pa. St. 137; Haley v. Philadelphia, 68 Pa. St. 45; Iron Works v. Oil Co., 1 L. R. A. 361; Meyer v. Berlundi, 1 L. R. A. 777; Merrill v. Shelburne, 8 Am. Dec. 52; State v. Flint, 63 N.W. 1113; Page v. Multhias Estate, 40 Ala. 547; 3 Enc. of Law, pp. 681-683 and notes; Suth. Stat. Const. secs. 480-482, 164; Cooley's Const. Lim. 361, 291; Baggs Appeal, 43 Pa. St. 512; Atkinson v. Dunlap, 53 Me. 111; Moser v. White, 29 Mich. 59; Gilman v. Tucker, 13 L. R. A. 304-310; Hill v. Sunderland, 3 Vt. 507; Stamford v. Barry, 15 Am. Dec. 691; Ratcliffe v. Anderson, 31 Am. R. 716; Town of Stafford v. Sharon, 17 A. R. 793; State v. Flint, 63 N.W. 1113; Merrill v. Shellburne, 8 Am. Dec. 52; Taylor v. Root, 4 Keyes 335, 344; Gilman v. Tucker, 13 L. R. A. 304-310.

ZANE, C. J. MINER, J., and HART, D. J., concur.

OPINION

ZANE, C. J.:

It appears from this record that the late George Handley was a resident of Salt Lake City; that he died on the 25th day of May, 1874, leaving a lawful wife, Elizabeth Handley, and a polygamous wife, Sarah A. Chapman, and the following children: John Handley, William Handley, Charles J. Handley, and Emma N. Handley, of the lawful marriage, and Ruth A. Newson, Benjamin T. Handley, Mary F. Handley, and Harvey F. Handley, of the plural marriage; that both wives and all of the children except Mary Handley are still living; that he died seised of real estate estimated to be of the value of $ 25,916.92; that on April 12, 1888, his widow, Elizabeth Handley, was appointed administratrix of her husband's estate by the probate court; and that she filed an inventory and final account as such. It also appears that the surviving children of the plural wife, and their mother, as the heir of the deceased Mary, filed their petition in said court, asking that the children of the polygamous marriage be recognized as lawful heirs of their father, and that his estate be divided in equal parts among the children of both marriages. After hearing the evidence and proofs, the court made findings of fact and stated its conclusions of law to the effect that the petitioners were not entitled, under the law, to any part of the estate of the deceased father, and entered a decree accordingly, and for costs. It further appears that the petitioners appealed to the supreme court of the territory of Utah, and upon a hearing in that court the decision of the lower court was affirmed, with costs, on July 28, 1890, 7 Utah 49, 24 P. 673; that the petitioners then appealed to the supreme court of the United States, and the appeal was dismissed for the want of jurisdiction, and its mandate was sent down to the supreme court of the territory, and the latter issued its mittimus or mandate to the district court. After the lapse of six years from the expiration of the time within which a motion for a rehearing could be made under the rules of the supreme court of the territory or of this state, the legislature of the state of Utah passed the act in force March 9, 1896, in pursuance of which the petitioners present this motion for a rehearing. The statute is as follows:

"Section 1. That section 2742 of the Compiled Laws of the territory of Utah, included when enacted and effectually operated at all times thereafter and now operates to include the issue of bigamous and polygamous marriages, and entitles all such issue to inherit, as in said section provided, except such as are not included in the provision in section 11, of the act of congress called the 'Edmunds-Tucker Act,' entitled 'An act to amend an act entitled "An act to amend section '5352" of the Revised Statutes of the United States, in reference to bigamy and for other purposes.'

"Sec. 2. That in all cases involving the rights of such issue to so inherit, heretofore determined adversely to such issue in any of the courts of the territory of Utah, a motion for a new trial or rehearing shall be entertained, on application of such issue who was or were parties at any time, within one year after this act shall take effect; and the case or cases in which said motion is so directed to be heard shall be deemed to be transferred to the courts of the state of Utah corresponding to that of the territory of Utah, in which such adverse decision was made, and the courts shall thereupon proceed to hear and determine said motion, and if granted to proceed to hear and determine said case or cases without prejudice from lapse of time since the former hearing or any prior determination of a like motion; provided, that this act shall not be construed to affect the rights of bona fide purchasers from any such parties before the approval of this act."

Handley, the ancestor, died in 1874,--10 years before section 2742 mentioned in the act became a law, and its meaning, operation, and effect declared by the act quoted. An act of the territorial legislature of March 3, 1852, was in force when the father and polygamous husband died. By that law the court determined the rights of the parties to his estate by the decree which the petitioners seek to set aside. This decree gave the entire estate to the children of the lawful wife, and it became final after the time for filing a petition for rehearing had passed. If it were conceded that the right of the children of the plural wife to inherit a portion of their deceased father's estate should have been determined by section 2742, Comp. Laws, and the decree sought to be set aside had been rendered under it, section 1 of the act of March 9, 1896, could have no effect upon that decree, because it became final six years before that law took effect. After the court has interpreted or construed a statute on the trial of a case, and rendered judgment, the legislature cannot affect it by a declaratory or explanatory law, giving the law under which the decree was rendered a different construction. To hold that the legislature can, would recognize the lawmaking department as a court of errors, with power to overturn all judgments and decrees depending upon the interpretation or the construction of statutes. The purpose of separating and classifying the powers of government, and of intrusting the lawmaking power to the officers of one department and the right to execute laws to another, and the power to interpret and construe and apply laws to the conduct and contentions of mankind to another, was to prevent the evils that would arise if all were concentrated and held by the same hand. Such a concentration of power would give to the class of officers possessing it absolute power and that would amount to a despotism.

The second section of the act upon which the petitioners rely is subject to fatal objections. That section declares that in all cases involving the right of polygamous children to inherit, determined against them before the act in any of the courts of the territory, a motion for a new trial or rehearing shall be entertained on their application, who were parties, at any time within one year after the act took effect. The court is required by it to entertain the motion for a new trial or rehearing regardless of when the judgment or decree became final. And the section further declares that such cases shall be deemed transferred from the territorial court to the state court. The state court is then directed to hear and...