Polygamy created a bastardy problem for nineteenth-century Mormons. At common law, a bastard was a child who was neither born nor begotten of married parents. In the eyes the law such a child was a nullius filius, meaning literally a child of no one. Accordingly, a bastard had no legal name, and, being related to no one, could not inherit in the absence of a bequest from anyone, including his father or mother. (This rule was slightly relaxed fairly early on so that a bastard was legally related to his or her mother, although not to his or her father.)
Children of polygamous marriages were — in the eyes of the law — bastards. This was the case even in the State of Deseret and the later Territory of Utah. The reason was that Mormons tended to approach the legal complications of plural marriage obliquely. Rather than declaring that polygamy was legal, thank you very much, they removed legal disabilities to polygamous marriages without actually mentioning the “p” word. Hence, in 1852, the legislature of the putative State of Deseret passed a law stating that:
Illegitimate children and their mothers inherit in like manner [ie as legal widows and legitimate children] fro the father, whether acknowledged by him or not, provided it shall be made to appear to the satisfaction of the court that he was the father of such illegitimate child or children.”
The law was later incorporated into the laws of the Territory of Utah, seeming to solve the bastardy problem. That is until 1862, when Congress passed the Morrill Anti-Bigamy Act, criminalizing polygamy in the territories.
Fast forward to May 25, 1874, when George Handle of Salt Lake City died. George had two wives: Elizabeth and Sara. He also had eight children, four by Elizabeth and four by Sara. Because he married Elizabeth first, she was his legal wife and became the administratrix of his estate. For whatever reason, Elizabeth cut Sara and her children out of the estate, distributing all of the assets to her four children. Sara and her four children sued Elizabeth under the 1852 law. Elizabeth defended by arguing that congress had revoked the law when it criminalized polygamy. Elizabeth’s argument won both at the trial level and at the Utah territorial supreme court. Sara then appealed to the U.S. Supreme Court. By this time it was 1894, and I suspect that with the issuance of the Manifesto and recent conclusion the year before of the Edmunds-Tucker Act litigation against the Church that the justices didn’t want to get involved in another Utah fight. Hence, in Chapman v. Handley, 151 U.S. 443 (1894) the Supreme Court found a way to dodge the issue, holding that they could not hear Sara’s case because she had sued the wrong people (rather than suing Elizabeth, the justices said, she should have sued Elizabeth’s children).
There is one other fun little twist in the story. The U.S. Reports indicate that Sara’s lawyer was “J.G. Sutherland.” This was probably George Sutherland, who at the time was a practicing Utah attorney. The son of Alexander Sutherland — a Mormon immigrant — he was born in England and came to Utah as a young boy. Once in Zion, Alexander and his family left the Church, although George did study at Brigham Young Academy, which he entered at age 12. The Oxford Companion to the Supreme Court, states that at BYA, “he studied under the Mormon scholar Karl G. Maeser. Maeser impressed on him that the framers of the Constitution had been divinely inspired.” Sutherland went on to study law at the University of Michigan under — among others — Thomas Cooley, whose famous treatise on constitutional limitations on the police power provided the intellectual blue print for the jurisprudence of the so-called Lochner era. Upon returning to Utah, Sutherland became active in Utah politics as a member of the Liberal Party (ie Gentile party). This would have been when he acted as Sara’s attorney. From 1901 to 1903 he served in the U.S. House of Representatives, where he championed protectionist tariffs for sugar beats. After serving in the Senate from 1905 to 1917, Warren G. Harding appointed Sutherland as an Associate Justice to the U.S. Supreme Court. (He had been considered for the court in 1910 by the Roosevelt administration, but dropped out of contention when the Democrats captured the White House in 1912.) On the Court, Sutherland was one of the famed “Four Horsemen” who resisted FDR’s New Deal, and championed the dying cause of the Lochner jurisprudence that Professor Cooley had first theorized.
The Court never did resolve the effect of the Morrill Act on the Utah territorial law, and by the time Chapman was decided the issue was moot. Utah had become a state, and as such its intestacy laws were no longer subject to repeal by an act of congress.