The law of a state in which land is situated controls and
governs its descent, alienation, and transfer, and neither a decree
of a court or a statute of another state can have any efficacy as
to title of real estate beyond the jurisdiction of that state.
The full faith and credit clause of the federal Constitution
does not require the courts of a state to give effect to a statute
legitimatizing children born before wedlock after marriage of their
parents so as to affect interests which, under the law of the state
where the property is located, had been so vested that it cannot be
affected by subsequent legislation, and so held that the courts of
New York are not required to give effect to a statute of Michigan
so as to vest in children of the testator legitimatized by such
statute property, the title to which had already vested in his
other legitimate children.
190 N.Y. 458 affirmed.
The facts are stated in the opinion.
Page 216 U. S. 390
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
Page 216 U. S. 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 January 22, 1902, and Benjamin F. Olmsted July 16,
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 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 re 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. 181
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
Page 216 U. S. 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:
"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 of
the will, were not remaindermen, nor entitled to share in the
estate. We think this should not be permitted."
By the laws of New York, 1895, c. 531, it is provided:
"SEC. 1. All illegitimate children whose parents have heretofore
intermarried, or shall hereafter intermarry, shall thereby become
legitimatized and shall be considered legitimate for all purposes.
Such children shall enjoy all the rights and privileges of
legitimate children, provided, however, that vested interests or
estates shall not be divested or affected by this act."
By Chapter 272 of the laws of New York of 1896, Vol. 1, it is
provided, § 18:
"An illegitimate child whose parents have heretofore
intermarried, or shall hereafter intermarry, shall thereby become
legitimatized and shall be considered legitimate for all purposes,
entitled to all the rights and privileges of a legitimate child;
but an estate or interest vested [or trust created] before the
marriage of the parents of such child shall not be divested or
affected by reason of such child being legitimatized."
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
Page 216 U. S. 393
Michigan Act of 1881, under the circumstances which we have
In Clarke v. Clarke, 178 U. S. 186
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:
"It is a doctrine firmly established that the law of a state in
which land is situated controls and governs its transmission by
will or its passage in case of intestacy. This familiar rule has
been frequently declared by this court, a recent statement thereof
being contained in the opinion delivered in DeVaughn v.
Hutchinson, 165 U. S. 566
, where the Court
said (p. 165 U. S. 570
" It is a principle firmly established that to the law of the
state in which the land is situated we must look for the rules
which govern its descent, alienation, and transfer, and for the
effect and construction of wills and other conveyances.
States v. Crosby,
7 Cranch 115; Clark v.
6 Wheat. 577; McGoon v.
9 Wall. 23; Brine v. Hartford Insurance
Co., 96 U. S. 627
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:
"The proposition relied on therefore is this although the court
of last resort of Connecticut (declaring the law of that state) has
held that the real estate in question had not become
Page 216 U. S. 394
personal property by virtue of the will of Mrs. Clarke,
nevertheless it should have decided to the contrary, because a
court of South Carolina had so decreed. This, however, is but to
argue that the law declared by the South Carolina court should
control the passage by will of land in Connecticut, and therefore
is equivalent to denying the correctness of the elementary
proposition that the law of Connecticut, where the real estate is
situated, governed in such a case."
In the case of Fall v. Eastin,
decided at this term,
215 U. S. 1
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. 215 U. S.
"This doctrine is entirely consistent with the provision of the
Constitution of the United States which requires a judgment in any
state to be given full faith and credit in the courts of every
other state. This provision does not extend the jurisdiction of the
courts of one state to property situated in another, but only makes
the judgment rendered conclusive on the merits of the claim or
subject matter of the suit."
"It does not carry with it into another state the efficacy of a
judgment upon property or persons, to be enforced by execution. To
give it the force of a judgment in another state, it must become a
judgment there, and can only be executed in the latter as its laws
"M'Elmoyle v. Cohen,
The principle established by these cases is applicable to the
case at bar. T he full faith and credit clause of the
Page 216 U. S. 395
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.