In re Park's Estate

81 P. 83 | Utah | 1905

BARTCH, C. J.

In the case of Hilton v. Roylance, 25 Utah 129, 69 Pac. 660, 58 L. R. A. 723, 95 Am. St. Rep. 821, it was, inter alia, held and decided that the petitioner herein, who was the plaintiff therein, was the lawful wife of John E. Park, and that upon his death “she became his lawful widow, and entitled to her share in his estate as such widow.” The final judgment and decree in that case were entered by the lower coturt pursuant to the mandate of this court. The petitioner then presented the petition herein to the court, praying that one-third in value of all the rents, issues, and profits arising from the decedents’s real property since his death be distributed and set apart to her, and that the court partition and set apart to her, as her separate estate, an undivided one-third interest in value, in fee, of all the real property belonging to the estate, free and dear from all debts of the deceased-At the hearing the prayer of the petition was granted, commissioners in partition were appointed, their report, setting apart one-third of the property to the widow, confirmed, and a decree entered accordingly. This appeal is from that decree and judgment.

Tbe counsel for tbe executor and appellant again attack tbe marriage status of tbe petitioner, and strenuously insist that sbe is not tbe lawful widow of tbe deceased, and that this court wrongfully held in tbe Roylance Case that a “sealing ceremony” performed in obedience to tbe alleged revealed doctrine of tbe Mormon Cburcb was in effect a marriage ceremony at common law. In tbeir zeal to bave this court reverse its former bolding in substantially tbe same case, and now bold tbat a sealing ceremony does not necessarily, and did not in tbe case of tbe petitioner, established tbe marriage status, they endeavor to brush aside tbe law of tbe case. They again refer to tbe facts, and discuss tbe questions of-law which were before us on tbe former appeal, and which were then considered and decided with tbat care and deliberation which tbe importance of tbe case demanded. They not only refer to and again discuss tbe facts disclosed by tbe record on tbat appeal, but, in violation of tbe established pratice, go outside of what would be a proper record, refer to and discuss evidence introduced in an entirely different-case, which has not yet been before us, and even resort to evidence introduced- before tbe committee on privileges and elections in tbe Senate of tbe United States at tbe bearing in tbe contest to test tbe right of Senator Need Smoot to retain his seat in tbe United States Senate. Counsel ought to understand tbat such evidence aliunde can be of no avail on this appeal. But even if we were to throw down tbe bars and consider this class of testimony, having no proper place in the record, still in our judgment, the correctness of our former decision would not be shaken in tbe least.

Counsel for tbe appellant, however, with reference to this court’s interpretation of the terms “sealing” and “sealing ceremony,” say:

“The errors into which tbe court has fallen are consequent upon tbe adoption of tbe idea tbat tbe works from which quotations are made form tbe only doctrines or rules of the Church of Jesus Christ of Latter-Day Saints in reference to marriage, while the fact is that all of them relate simply to one feature of the marriage ordinances of that church, namely, the sealing of living persons in marriage for time and eternity.”

■*” In answer to this it may be observed that counsel even now have referred us to no other works than those examined and considered on the former occasion, nor have they referred us to any other revelation of the Mormon Church on the subject of matrimony than the one construed in our former opinion; nor, if we now were to consider the extrinsic evidence here-inbefore refered to, would, under any reasonable interpretation of the revelation, that evidence sustain their contention, for it appears therefrom that “sealing for eternity” is, except in very rare instances, performed only in cases where one of the parties is dead, and not where, as here, both were living. Erom that testimony it appears that a question was propounded to the president of the Church by the chairman of the Senate committee, in the case of Senator Smoot, as follows: “Is the sealing for eternity ever permitted between two living mortals ?” To this President Smith, who, according to the tenet of the Mormon Church, holds the key to the power to solemnize marriages, answered: “I have heard, Mr. Chairman, of one or two instances of that kind.” If such a witness, the very head of the church, in his lifelong experience has heard of but one or two instances of sealing for eternity between the living, how can it be said that such sealing is a rule of the church, or that this court has fallen into error in holding that a sealing ceremony, such as is expressly authorized by what is claimed to be the revealed law, and performed by a duly authorized officer of the church in the ordinary manner, is a marriage ceremony valid at common law, and creates the marriage status? It thus seems clear that if we were to violate the familiar rules of evidence, and consider the class of testimony referred to, it could not avail the appellant.

Although we have adverted, for the sake of argument, to matters not properly in this record, we have found nothing which militates against the construction placed upon the revelation, nor against the doctrine announced in the Roylance Case, and we therefore again affirm that decision. The fact that the petitioner herein has brought or may institute suits against third parties who purchased real property from the deceased in his lifetime, to recover an interest in such real property — she not having joined in the conveyances — cannot affect her marriage status. Whether she can now maintain such suits against innocent third parties who made such purchases ignorant of the status existing between her and the vender, or whether her conduct during the lifetime of the vender was such as to estop her from maintaining them, are questions which we do not decide; the same not being material to this decision'. Such questions can only be determined upon proper pleadings and proof. There is nothing in this case showing an estoppel. The decree and judgment challenged by this appeal are but the result of our own mandate. Nor do we find any error in the proceedings for the partition of the real property.

The judgment is therefore affirmed, with costs.

McCARTY, J., and ARMSTRONG-, District Judge, concur.