Olmsted v. Olmsted

Decision Date07 January 1908
Citation83 N.E. 569,190 N.Y. 458
PartiesOLMSTED v. OLMSTED et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, First Department.

Action by Daniel H. Olmsted against John H. Olmsted and others. From a judgment of the Appellate Division (102 N. Y. Supp. 1019), modifying, and, as modified, affirming, a judgment for defendants entered on a decision (100 N. Y. Supp. 1083), defendants appeal. Reversed.

Charles H. Luscomb and Read G. Dilworth, for appellants.

Mortimer W. Byers, for respondents.

HAIGHT, J.

This action was brought to obtain a partition or sale of real estate claimed by the appellants as tenants in common, and for a determination of the rights of the parties to share in the proceeds of any sale that should be made thereof.

It appears, in substance, from the findings made by the trial court, that the real estate in question was formerly owned by one Silas Olmsted, late of Tarrytown, N. Y., who died in 1874, leaving a last will and testament with codicils attached which were admitted to probate, by which he devised the use of the property to his sons, William F. and Benjamin Franklin, during their natural lives, and upon their death the remainder was to vest in the ‘lawful issue of each of my said sons, such issue to take share and share alike; the children of any deceased child of either of my said sons to take the share their parent would have taken if living.’ Benjamin F. Olmsted, one of the sons of the decedent to whom a life interest in the real estate in question had been given by the testator, was married to Mary J. Olmsted in the state of New York on the 25th day of December, 1850, by whom he had four children, to wit, the plaintiff, Daniel H. Olmsted, and the defendants Mary O. Decker, Clarence E. Olmsted, and Frank S. Olmsted. Benjamin F. and his wife, Mary, were residents of the state of New York at the time of their marriage, and at the time their children were born, and Mary continued to be a resident of this state until her death, on the 22d day of January, 1902. It further appears from the finding that on the 28th day of February, 1874, Benjamin F. Olmsted Joined in a marriage ceremony with one Sarah Louise Welchman in the state of New Jersey, by whom he had two children, who were the defendants John E. Olmsted and William H. Olmsted, and that thereafter, during the summer of 1880, they removed to the state of Michigan, and on the 10th day of February, 1882, in the circuit court of Wayne county, Mich., on the application of Benjamin F. Olmsted, reciting that he then was and had been for more than a year a resident of the state of Michigan, procured a subpoena to be issued, directing Mary Jane Olmsted, his former wife, to appear and defend an action brought by him for divorce under the law of the state of Michigan, on account of extreme cruelty and desertion; that the subpoena was never personally served upon Mary J. Olmsted, and on proof that she was not a resident of the state of Michigan, but was a resident of the state of New York, service thereof was ordered to be made by publication in a Detroit paper. After the period of publication prescribed by the order had expired, the said Mary Jane Olmsted not having appeared or answered, judgment was entered in favor of said Benjamin F. Olmsted for a dissolution of the marriage, and thereafter, on the 22d day of August, 1882, in the city of Detroit, Mich., Benjamin F. Olmsted again joined in a marriage ceremony with the said Sarah Louise Welchman, and lived with her until the time of her death, January 30, 1900; that in June, 1883, Mary Jane Olmsted commenced an action in the Supreme Court in the state of New York against Benjamin F. Olmsted and others, setting forth in her complaint that in June, 1870, Benjamin F. Olmsted deserted and abandoned her and her children at Newburgh, N. Y., and took up his abode in New Jersey, and demanded a decree of separation against him and asking for alimony and counsel fee, and the application of the property of the said Benjamin F. Olmsted for the purpose of furnishing the money required therefor; that in that action the judgment roll shows that Benjamin F. Olmsted was represented by an attorney on a motion for the sequestration of his property to pay the alimony, etc., decreed in the judgment; and that on the 22d day of January, 1885, judgment was entered in that action for the plaintiff Mary Jane Olmsted and against the defendant Benjamin F. Olmsted, separating Mary Jane From him and requiring the payment by him of alimony and counsel fees; that thereafter an appeal was taken from the judgment so entered to the General Term of the Supreme Court, in which the judgment was affirmed. Benjamin F. Olmsted died July 16, 1905, and thereupon his lawful issue became entitled to the real estate as remaindermen. The trial court found as conclusions of law that the lawful issue of Benjamin F. Olmsted were the plaintiff, Daniel H. Olmsted, and the defendants Mary O. Decker, Clarence E. Olmsted, and Frank S. Olmsted; that the defendants John H. Olmsted and William H. Olmsted, the children of Benjamin F. Olmsted and Sarah Louise Welchman, were not the lawful issue of Benjamin F. Olmsted, and were not entitled to any share in the said property. The Appellate Division has modified the judgment, holding that the defendants John H. Olmsted and William H. Olmsted are the lawful issue of Benjamin F. Olmsted, and are entitled to share in the said property.

Under the common law the legitimacy or illegitimacy of a person was determined by the law of the country in which he was born. If by the law of that country he was legitimate, he should be deemed legitimate everywhere. If, however, by that law he was illegitimate, then he should be deemed illegitimate in every other country. There were some exceptions; for instance, if the parents were citizens or representatives of some foreign country, passing through or temporarily staying in the country of the birth. But these exceptions do not arise in the case under consideration, and are not necessary to be now considered. In some of the countries of Europe there were laws under which illegitimate children became legitimate by the subsequent marriage of their parents. This was the case in France, and its courts consequently held that a child born out of wedlock in its country became legitimate by a subsequent marriage of its parents, although the marriage took place in...

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25 cases
  • Vought's Trust, In re
    • United States
    • New York Supreme Court — Appellate Division
    • December 21, 1967
    ...intended to disinherit the issue of the meretricious relationship. At any rate, the decision of the Court of Appeals in Olmsted v. Olmsted, 190 N.Y. 458, 83 N.E. 569, clearly equated legitimacy with 'lawful issue.' In that case the Court considered the question of whether certain children b......
  • In re Lindgren's Estate
    • United States
    • New York Court of Appeals Court of Appeals
    • May 25, 1944
    ...we think that as a third party she may challenge the validity of the Florida decree of 1939. See Olmsted v. Olmsted, 190 N.Y. 458, 466, 467,83 N.E. 569, 571,123 Am.St.Rep. 585, affirmed 216 U.S. 386, 30 S.Ct. 292, 54 L.Ed. 530, 25 L.R.A., N.S., 1292; Andrews v. Andrews, 188 U.S. 14, 39, 23 ......
  • In Re Thorn's Estate. Appeal Of Skinner .
    • United States
    • Pennsylvania Supreme Court
    • March 25, 1946
    ...110 Am.St.Rep. 540; In re Moretti's Estate, 16 Pa. Dist. & Co. R. 715; Miller v. Miller, 91 N.Y. 315, 43 Am.Rep. 669; Olmsted v. Olmsted, 190 N.Y. 458, 464, 465, 83 N.E. 569, 570, 123 Am.St.Rep. 585. Our own statutes provide that illegitimate children are legitimated by the subsequent marri......
  • In re Thorn's Estate
    • United States
    • Pennsylvania Supreme Court
    • March 25, 1946
    ... ... 137; McCausland's Estate , 213 Pa. 189, 62 A ... 780; Moretti's Estate , 16 D. & C. 715; ... Miller v. Miller , 91 N.Y. 315; Olmsted v ... Olmsted , 190 N.Y. 458, 464, 465, 83 N.E. 569, 570. Our ... own statutes provide that illegitimate children are ... legitimated by the ... ...
  • Request a trial to view additional results

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