Mr. Mortimer W. Byers for plaintiffs in error.
[216 U.S. 386, 388] Messrs. Charles H. Luscomb and Read G. Dilworth for defendants in error.
Mr. Justice Day delivered the opinion of the court:
This case is brought here because of alleged violation, in the judgment of the supreme court of New York, of the full faith and credit clause of the Federal Constitution. The judgment was entered in the supreme court of New York by an order of the court of appeals of the same state. 190 N. Y. 458, 123 Am. St. Rep. 585, 83 N. E. 569.
The facts, in substance, are: Silas Olmsted, a resident of the state of New York, died in that state in 1874, devising by his will, duly probated, a one-half interest in certain real estate in New York to his son, Benjamin F. Olmsted, with the remainder over to the lawful issue of said Benjamin. In 1850, Benjamin F. Olmsted, while a resident of the state of New York, married Mary Jane Olmsted, of the state of New York, and lived with her in that state until January, 1870. Benjamin F. Olmsted had children by that marriage, who are defendants in error in this case. On February 28, 1874, without procuring a divorce from his first wife, Benjamin F. Olmsted went through a marriage ceremony in New Jersey with Sarah Louise Welchman. Two children, John H. and William H. Olmsted, who are the plaintiffs in error in this case, were born, in the state of New Jersey, of this attempted marriage. Thereafter, in 1880, Benjamin F. Olmsted and Sarah Louise Welchman, with their two children, went to live in the state of Michigan. In 1882, Benjamin F. Olmsted secured a divorce from his first wife, mary Jane Olmsted, in accordance with the laws of Michigan, in the circuit court of Wayne county, Michigan. Service was made of process by publication in a Detroit newspaper, and no personal service was made on Mary Jane Olmsted, nor did she appear in the action, judgment being granted by default. On August 22, 1882, Benjamin F. Olmsted and Sarah Louise Welchman were married in the state of Michigan. By the provision of a statute enacted in that state in 1881, children born out of wedlock became legitimate upon the subsequent marriage of [216 U.S. 386, 391] their parents. In January, 1883, in an action in the supreme court of New York, a decree of separation and for alimony was granted to Mary Jane Olmsted from her husband, Benjamin F. Olmsted. Benjamin F. Olmsted did not appear in that action, and the record contains no evidence of service of summons upon him. He was represented by counsel on a motion to sequestrate his property, and upon appeal from an order thereon. The judgment was affirmed. January 22, 1902, and Benjamin F. olmsted 30, 1900; Mary Jane Olmsted died Janyary 22, 1902, and Benjamin F. Olmsted July 16, 1905
The action was for partition of the New York real estate devised under the will of Silas Olmsted. The plaintiffs in error, John H. and William H. Olmsted, children of the marriage with Sarah Louise Welchman, claim the right to participate equally with the children of Benjamin F. Olmsted and mary Jane Olmsted, as lawful issue of Benjamin F. Olmsted, in the real estate located in the state of New York, and devised under the will of Silas Olmsted. The supreme court of New York, by its judgment, denied the right of the plaintiffs in error to thus participate.
The opinion delivered in the New York court of appeals shows that its decision was rested, in part, upon the invalidity of the Michigan marriage, because the courts of Michigan had never obtained jurisdiction over Mary Jane Olmstead, the first wife of Benjamin F. Olmsted. For that view the learned court, in denying that it was bound to give full faith and credit to such a decree and to the Michigan statute of 1881, cited Re Kimball, 155 N. Y. 68, 49 N. E. 331; Winston v. Winston, 165 N. Y. 555, 59 N. E. 273; Haddock v. Haddock, 201 U.S. 562 , 50 L. ed. 867, 26 Sup. Ct. Rep. 525, 5 A. & E. Ann. Cas. 1; Atherton v. Atherton, 155 N. Y. 129, 40 L.R.A. 291, 63 Am. St. Rep. 650, 49 N. E. 933, 181 U.S. 155 , 45 L. ed. 794, 21 Sup. Ct. Rep. 544.
It also puts its decision on the ground that the Michigan statute of 1881, legitimating the children born previous to marriage, could not have the effect of admitting them to participate in the division of the real estate in the state of New York, as it was passed long after the death of Silas [216 U.S. 386, 392] Olmsted, and the probate of his will, under which his legitimate grandchildren had vested estates as remaindermen, subject to the life use in the father. And further, said the court of appeals of New York, in speaking of the contention that the Michigan act should be given full faith and credit in the state of New York:
By the laws of New York, 1895, chap. 531, it is provided:
By chapter 272 of the laws of New York of 1896, vol. 1, it is provided, 18:
The question, therefore, is as to the title to real estate in the state of New York. Does the full faith and credit clause of the Federal Constitution require that effect be given to the [216 U.S. 386, 393] Michigan act of 1881, under the circumstances which we have detailed?
In Clarke v. Clarke, 178 U.S. 186 , 44 L. ed. 1028, 20 Sup. Ct. Rep. 873, the question was as to the effect to be given to a judgment rendered in the supreme court of South Carolina in the courts of the state of Connecticut, respecting real estate situated in the latter state. The South Carolina court held that a certain will worked an equitable conversion into personalty at the time of the death of the testatrix of all her real estate, wherever situated, and that the executor of the will was authorized to administer the same as personalty, and to sell and convey the same for the purpose of executing the will. The supreme court of Connecticut refused to follow the judgment of the supreme court of South Carolina, and the case was brought here under the full faith and credit clause. This court, in disposing of the question, said:
In speaking of the contention of the plaintiff in error, that the South Carolina judgment must be given full force and effect, the court further said:
In the case of Fall v. Eastin, decided at this term, 215 U.S. 1 , 54 L. ed. --, 23 L.R.A.(N.S.) 924, 30 Sup. Ct. Rep. 3, the same principle was recognized. In that case it was held that a deed made by a master, by order of the court, in the state of Washington, in execution of a decree where the court had jurisdiction of the parties, did not have any efficacy as to the title to real estate beyond the jurisdiction of the court. It is unnecessary to review the previous cases from this court; a number of them are examined in the opinion in Fall v. Eastin.
After stating the principle that the disposition of real estate, whether by deed, descent, or otherwise, must be governed by the laws of the state where the real estate is situated, this court said ( 215 U.S. 12 ):
The principle established by these cases is applicable to the case at bar. The full faith and credit clause of the Constitu- [216 U.S. 386, 395] tion applies with no more effect to the legislative acts of a foreign state than it does to the judgments of the courts of such state. The controversy herein concerns an interest in real estate located in the state of New York. Under a will probated in the state of New York, where the land is situated, it was devised to the lawful issue of Benjamin F. Olmsted. The contention of the plaintiffs in error is that by the act of 1881 of the state of Michigan, they had become legitimate, and are accordingly entitled to participate in the division of the estate. To this contention the highest court of the state of New York has answered that neither the law of the state of Michigan nor the act of the state of New York, legitimating children, under such circumstances, can have the effect and force of disturbing interests already vested when the acts were passed.
We think there is nothing in the due faith and credit clause which requires the courts of New York to give the effect contended for to the Michigan statute. The legislature of Michigan had no power to pass an act which would affect the transmission of title to lands located in the state of New York. No more had it power to legislate concerning the titles to lands in New York than the courts of Michigan, by their judgments, would have authority to adjudicate such rights.
We are not concerned with the correctness of the decision of the court of appeals of New York, interpreting its statutes and applying the law of its jurisdiction to the construction of the will of Silas Olmsted. We hold that there is nothing in the Federal Constitution requiring the courts of the state of New York to give force and effect to the statute of the state of Michigan, so as to control the devolution of title to lands in New York.