Laughlin, J.:
This is an action by one of the sons of Benjamin F. Olmsted, deceased, for a partition or sale of real e'state devised by the will of plaintiff’s grandfather, Silas Olmsted, to the issue of his two sons, William F. and said Benjamin F., after tlie death of the survivor of them. The property was sold during the. pendency of the action by the executor of said Silas Olmsted, pursuant to a power of sale contained in the will. The decision of the court from which the appeal is taken directs a distribution of the proceeds of the sale between lawful issue of said Benjamin F. and William F. Olmsted, pursuant to the provisions of his will. The court found that the lawful issue of said Benjamin F. Olmsted, entitled to his share, are' ' his sons, the plaintiff and the defendants Clarence E. and Frank S. Olmsted and his daughter, the" defendant Mary 0. Olmsted, and that the appellants, who are the- children of said Benjamin F. Olmsted and one Sarah Louise Welchman, are not the lawful issue of said Benjamin F. Olmsted, and are not entitled to share in the proceeds of the sale.
The facts are not in dispute. Benjamin F, Olmsted was lawfully married to Mary Jane Olmsted in this State on the 25th day of December, 1850, and the four children in whose favor the decree [71] was made are concededly the lawful issue of that marriage. The matrimonial domicile appears to have been, although it is not so specifically shown, in the State of Few York, and the wife remained a resident of this State until her death on the 22d day of January, 1902. It is evident that on or prior to the 28th day of February, 1874, Benjamin F- Olmsted removed to Few Jersey, for on that date a ceremonial marriage was performed between him and Sarah Louise Welchman, the mother of the appellants, in that State, and the appellants were born to them -there. During the summer of 1880 the father and mother of the appellants and their two childen became residents of and permanently domiciled in the State of Michigan. On the 10th day of February, 1882, the Circuit Court for the county of Wayne in the State of Michigan, on the application of said Benjamin F. Olmsted, showing that he then was and for more than a year past had been a resident of that State, issued a subpoena to his wife, Mary J. Olmsted, to appear and defend an action brought by him for a divorce under the laws of Michigan, upon the ground of extreme cruelty and desertion. The subpoena was never served personally upon her, and on proof that she was not a resident and could not be found in the State of Michigan, but was a resident of the State of Few York, service was ordered to be made upon her by publication-, and was thereafter duly made according to the law of the State of Michigan. She was not served personally and she did not appear in the action; and after the service became complete-the court on the 19th day of June, 1882, awarded judgment in favor of the plaintiff for the dissolution of the marriage. Thereafter, and on the 22d day of August, 1882, a ceremonial marriage was performed between the father and mother of the appellants in the State of Michigan, according to the laws of that State,.and they thereafter resided together there until her death. In June, 1883, his wife Mary Jane commenced an action against him in the Supreme Court in this State for a decree of separation, and praying for alimony and counsel fees. The defendant did not appear on the trial of the action, and judgment was awarded in favor of the plaintiff on the 22d day of January, 1885, separating the parties from bed and board, and awarding her alimony. The judgment roll in that action shows that the defendant was represented by an attorney and counselor at law on a motion for the [72] sequestration of his property to- pay the alimony awarded in the judgment, and from the order entered the defendant, by the attorney who appeared for him on the motion, appealed to the General Term,' where it was affirmed in October, 1885. (38 Hun, 638.) Sarah Louise Welchman died on the 30th day of January, 1900, and Benjamin -F. Olmsted died on -the 16th day of July, 1905. An act-was duly passed by the Legislature of the State of Michigan^ approved by the. Governor, and became of force on the 29th day of March, 1881, which provides as follows: “ When, after the birth of an illegitimate child, his parents shall intermarry, or without such marriage, if the father shall, by writing under liis hand acknowledge such child as his child, such child shall be considered legitimate for all intents and purposes: Provided, That such -acknowledgment shall be executed and acknowledged in the same manner as may be by -law provided for the execution and acknowledgment of -deeds of real estate, and be recorded in the office of the judge of probate of the county in which such father is at the time a resident.” (See Public Acts of Mich, of 1881, No. 55.)
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Laughlin, J.:
This is an action by one of the sons of Benjamin F. Olmsted, deceased, for a partition or sale of real e'state devised by the will of plaintiff’s grandfather, Silas Olmsted, to the issue of his two sons, William F. and said Benjamin F., after tlie death of the survivor of them. The property was sold during the. pendency of the action by the executor of said Silas Olmsted, pursuant to a power of sale contained in the will. The decision of the court from which the appeal is taken directs a distribution of the proceeds of the sale between lawful issue of said Benjamin F. and William F. Olmsted, pursuant to the provisions of his will. The court found that the lawful issue of said Benjamin F. Olmsted, entitled to his share, are' ' his sons, the plaintiff and the defendants Clarence E. and Frank S. Olmsted and his daughter, the" defendant Mary 0. Olmsted, and that the appellants, who are the- children of said Benjamin F. Olmsted and one Sarah Louise Welchman, are not the lawful issue of said Benjamin F. Olmsted, and are not entitled to share in the proceeds of the sale.
The facts are not in dispute. Benjamin F, Olmsted was lawfully married to Mary Jane Olmsted in this State on the 25th day of December, 1850, and the four children in whose favor the decree [71] was made are concededly the lawful issue of that marriage. The matrimonial domicile appears to have been, although it is not so specifically shown, in the State of Few York, and the wife remained a resident of this State until her death on the 22d day of January, 1902. It is evident that on or prior to the 28th day of February, 1874, Benjamin F- Olmsted removed to Few Jersey, for on that date a ceremonial marriage was performed between him and Sarah Louise Welchman, the mother of the appellants, in that State, and the appellants were born to them -there. During the summer of 1880 the father and mother of the appellants and their two childen became residents of and permanently domiciled in the State of Michigan. On the 10th day of February, 1882, the Circuit Court for the county of Wayne in the State of Michigan, on the application of said Benjamin F. Olmsted, showing that he then was and for more than a year past had been a resident of that State, issued a subpoena to his wife, Mary J. Olmsted, to appear and defend an action brought by him for a divorce under the laws of Michigan, upon the ground of extreme cruelty and desertion. The subpoena was never served personally upon her, and on proof that she was not a resident and could not be found in the State of Michigan, but was a resident of the State of Few York, service was ordered to be made upon her by publication-, and was thereafter duly made according to the law of the State of Michigan. She was not served personally and she did not appear in the action; and after the service became complete-the court on the 19th day of June, 1882, awarded judgment in favor of the plaintiff for the dissolution of the marriage. Thereafter, and on the 22d day of August, 1882, a ceremonial marriage was performed between the father and mother of the appellants in the State of Michigan, according to the laws of that State,.and they thereafter resided together there until her death. In June, 1883, his wife Mary Jane commenced an action against him in the Supreme Court in this State for a decree of separation, and praying for alimony and counsel fees. The defendant did not appear on the trial of the action, and judgment was awarded in favor of the plaintiff on the 22d day of January, 1885, separating the parties from bed and board, and awarding her alimony. The judgment roll in that action shows that the defendant was represented by an attorney and counselor at law on a motion for the [72] sequestration of his property to- pay the alimony awarded in the judgment, and from the order entered the defendant, by the attorney who appeared for him on the motion, appealed to the General Term,' where it was affirmed in October, 1885. (38 Hun, 638.) Sarah Louise Welchman died on the 30th day of January, 1900, and Benjamin -F. Olmsted died on -the 16th day of July, 1905. An act-was duly passed by the Legislature of the State of Michigan^ approved by the. Governor, and became of force on the 29th day of March, 1881, which provides as follows: “ When, after the birth of an illegitimate child, his parents shall intermarry, or without such marriage, if the father shall, by writing under liis hand acknowledge such child as his child, such child shall be considered legitimate for all intents and purposes: Provided, That such -acknowledgment shall be executed and acknowledged in the same manner as may be by -law provided for the execution and acknowledgment of -deeds of real estate, and be recorded in the office of the judge of probate of the county in which such father is at the time a resident.” (See Public Acts of Mich, of 1881, No. 55.)
It is unnecessary to state, in detail the steps that were taken in the action by the father of the appellants for divorce in the State of Michigan, or to consider the statutes of that State under which' the divorce was.granted. It is sufficient to say that, according to the laws of that State, the court acquired jurisdiction and the divorce was. duly granted, and the father of the appellants was competent to contract another marriage. Hor is it necessary to quote the statute or to state the facts with respect to his subsequent marriage to the mother of the appellants. That marriage was duly solemnized according to the laws of Michigan arid was there valid. By virtue, therefore, of the statute quoted, the appellants thereby became legitimized in the State of Michigan. They contend that their status as the legitimate heirs of their father having thus been established by the law.of the State of' their residence and-that of their parents, must or should be recognized by the courts of every other State of the Union. There is no doubt but that, as between Mary Jane Olmsted and the father of the appellants, under the decisions of the courts of this State he remained her husband as long as she lived, and neither the divorce nor subsequent marriage in Michigan would be recognized here; In the case of Miller v. [73] Miller (91 N. Y. 315), prior to the enactment of any law in this State legitimizing children born out of wedlock upon the subsequent marriage of their parents, the Court of Appeals gave force and effect to such a statute of Pennsylvania and said, among other things: “ The law-making power can declare a child born to be legitimate or illegitimate, and it is only that power which fixes and determines the status of children born. If born before marriage, the Legislature can remove the disability of its illegitimacy and by its transcendent power can legitimatize and make capable of inheriting the illegitimate child. (Blackstone, 4 Inst. 36.