ERROR TO THE SUPREME COURT OF THE STATE OF NEW YORK.
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.
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
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. Sarah Louise Welchman died January 30, 1900; Mary Jane Olmsted died January 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 wih 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 Olmsted, 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 In the Matter of Kimball, 155 N.Y. 68; Winston v. Winston, 165 N.Y. 555; Haddock v. Haddock, 201 U.S. 562; Atherton v. Atherton, 155 N.Y. 129, 181 U.S. 155.
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
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:
"Should we sanction the doctrine contended for, then the legislature in any State could, in effect, nullify our own statutes and deprive our own citizens of property, which under our laws they had become lawfully vested with and entitled to receive. Not only this, but the statute of Michigan, passed in 1881, could change the provisions of a will executed here and probated in 1874, bringing in persons as remaindermen who, under the provisions ...