In cases of intestacy personal property is distributed according to the hiw of the place of the domicile of the intestate. (Parsons v. Lyman, 20 N. Y., 103, 112; Moultrie v. Hunt, 23 id., 394; *509Story’s Conflict of Laws, § 380.) But real estate in such cases descends according to the law of the place where it is situated. (White v. Howard, 46 N. Y., 144-159: Story’s Conflict of Laws, § 424.)
These rules are elementary and control wherever the common law prevails, and in nearly every civilized country. All independent governments exercise without dispute the right to specify by enactment the class of persons who may own lands within their territories, and to define the modes by which title to lands may be acquired and transmitted. This right is necessarily exclusive. Were other governments permitted in the least degree to prescribe the persons who may acquire title to real estate, and the methods by which title may be transmitted, inextricable confusion would ensue.
By the statutes of this State illegitimate children and relatives are not entitled to inherit real estate.' (1 R. S., 754, § 19.)
Words and terms having a precise and well-settled meaning in the jurisprudence of a country are to be understood in the same sense when used in its statutes; unless a different meaning is unmistakably intended.
The word “illegitimate,” when used in this connection, has by the common law, and the law of this State, a well defined meaning, -which is, begotten and born out of wedlock. (1 R. S., 641, § 1; 2 Kent’s Com., 208-209; 1 Blackstone’s Com., 454-455.) This has been the meaning of the word since the common law was reduced to writing. This statute, read in this light, means that children begotten and bom out of wedlock shall not inherit lands in this State.
For most purposes, eacn sovereignty may fix the status of its citizens, which continues wherever they are subsequently domiciled; but the status so fixed cannot confer rights repugnant to the laws of the country of adoption. The Legislature of a State may create the legal relation or status of parent and child between persons in no wise related. This has been frequently done by special laws. Several States have statutes permitting the adoption of strangers, which being done, the two sustain to each other and to all within that State, the legal relation of parent and legitimate child ; but if the two should become residents of this *510State, and the parent by adoption die intestate possessed of lands, the child by adoption would not inherit under our statutes.
It is said that the cases are not parallel, because an adopted child is not a “lineal descendant,” and, therefore, not within our statutes of descent. This is true, if the term refers to the circumstances of birth instead of to a legal status which may be established by law. If the word ‘ ‘ illegitimate ” in the statute of descents refers, ’ as we think we have heretofore shown, to the circumstances of birth, the two cases are parallel, and if the statute of another State can subvert our statute regulating the descent of real property in the one case, it can in the other. In other words, if the statute of another State can make an heir to lands in this State out of a person not possessing the physical qualities of legitimacy required by our statute, an heir can be so made out of f person possessing none of the physical qualities of a lineal descendant.
A foreign statute, or a status created by it, does not control our statutes regulating the descent of real property. But we are not called upon to elaborately discuss this question, it having been exhaustively done in the King’s Bench and House of Lords. (Birtwhistle v. Vardill, 5 B. & C., 438; id., 9 Bligh., 32; id., 2 C. & F., 571; 7 id., 817.) In this case it was held that.an antenuptial child born in Scotland, of persons domiciled there, could not inherit lands in England, though by the law of Scotland the child had been legitimated by the subsequent intermarriage of the parents. The rule laid down in this case has been uniformly followed in England. (Don’s Estate, 4 Drewry, 197; In re Wright, 2 K. & J., 595; Shaw v. In re Gould, Wilson’s Trusts Law Rep.; 1 Eq. Cases, 247; Law Rep., 3 H. L., 55.)
It is urged that the decisions of the English courts are founded upon the statute of Merton, enacted at the priory of Morton, in Surrey, in the year 1236.
For centuries the ecclesiastics endeavored to subvert the law of England regulating the legitimacy of children, and introduce in its stead the canons of the church. During the reign of Henry II, Pope Alexander III went so far as to assume original and exclusive jurisdiction in cases involving legitimacy, and issued a commission to the bishop of Winton and Exon to inquire .if the mother of one Robert de Ardenna was legitimate, and if *511so, to restore to said Robert certain lands. It was urged in behalf of the king that Christ refused to entertain such a case upon a petition made to him. “ Master, speak to my brother that he divide the inheritance with me. And he said unto him : Man, who made me a judge or a divider over you ? ” (Luke 12, 13 and 14.) The jurisdiction asserted was successfully resisted, on the ground that temporal courts had exclusive jurisdiction over temporal inheritances. (Davies’ Reports, title of Legitimation.) But it may well be doubted whether the text cited exercised as much influence on the result as the temporal power of that vigorous and stubborn monarch.
Before and during the reign of Henry III, if it was alleged that the person claiming as heir was illegitimate, a writ was issued to the archbishop, or bishop, commanding that inquiry and return upon this issue be made to the king or his justices. (1 Reeves’ Hist., chap. 3, 168.) By the canons of the church, and the rule of the Roman law, the subsequent intermarriage of parents legitimated antenuptial children, and the ecclesiastics were inclined to return according to the canons of their church, and contrary to the common law.
At the parliament of Merton the ecclesiastics endeavored to enact the rule of their church, but “ all the earls and barons, with one voice, answered that they would not change the laws of England which had hitherto been used and approved.” (1 Black. Com., 19, 456; 2 Kent’s Com., 209.) No change whatever was made at Merton ; and, thereafter, the ecclesiastics were required to return the facts, whether the claimant was begotten and born out of wedlock, and judgment was rendered by the courts according to the common law. (1 Reeve’s Hist., chap. 3, 169.)
Bracton, an ecclesiastic, as well as lawyer, who wrote, it is supposed, in the time of Henry III, in discussing the effect of the legitimation of antenuptial children by the subsequent intermarriage of their parents, said: “It follows to consider how the illegitimate are legitimated, and it is to be known, that if any one has natural children by any woman, and after-wards contracts matrimony with her, the children already born are legitimated by the subsequent marriage, and are reckoned fit for all lawful acts, nevertheless only for these which regard the *512sacred ministry, but they are not legitimate for those which regard the realm, nor are they adjudged to be heirs who can succeed to their relatives, on account of a custom of the realm, which is of a contrary import.” (Chap. 29 f., 63 b. or vol. 1, page 503 of the Lords Commissioners edition.)
It may be safely asserted that the decisions of the English courts rest on the common law.* But it is not very material whether they rest on the common law or the early statutes, because the English statutes enacted before the settlement of this State are a part of its common law. (Bogardus v. Trinity Church, 4 Paige, 198; 1 Kent’s Com., 473.)
Prior to the passage in Pennsylvania of the act of May 14,1857, it was there held that a child begotten and born out of wedlock in another State, and legitimated by the law of that State, could not inherit lands in Pennsylvania. (Smith v. Derrs' Administrators, 34 Penn. Stat., 126.) The question in the case at bar was not necessarily involved in Smith v. Derrs' Administrators, because, under the statute of Pennsylvania, at the time the case arose and was decided, only persons born in lawful wedlock and posthumous children were entitled to succeed to real and personal estate. (§§ 13 and 17, act of April 8, 1833; 1 Brightly’s Purdon’s Digest [10th ed.], 809; §§ 33 and 36, p. 810.) But the doctrine of Birtwhistle v. Vardill was discussed and fully approved by the court. In Lingan v. Lingan (45 Ala., 410) an illegitimate son, born and domiciled in France, was legitimated according to the laws of that empire. The father died intestate, seized of real and personal estate, in Alabama. It was held following Birtwhistle v. Vardill and Smith v. Derrs' Administrators, that the legitimated child was not entitled to inherit. But a single case has been cited by the counsel, or found by the court, conflicting with the cases above referred to. Scott v. Key (11 La. Annual, 232) is in direct conflict. In this case, it was held by a divided court, that an act of the Legislature of the territory of Arkansas legitimating an illegitimate child, rendered the child legitimate for the purpose of inheriting lands in Louisiana. But the statute regulating the descent of lands in that State does not exclude, from the list of persons who may inherit, children begotten and born out of wedlock ; but, on the contrary, permits *513them to inherit if legitimated by the intermarriage of the parents -• and recognition.
Smith v. Kelley (23 Miss., 167) is not in conflict with the English cases. This was a case of an antenuptial child, born in South Carolina, in which State the parents intermarried, but at that time their intermarriage did not legitimate the child. Subsequently, the three became citizens of Mississippi, where antenuptial children were legitimated by the subsequent intermarriage of the parents. The father died intestate. It was held that the status of the child was fixed by the domicile of its origin; where it was illegitimate, so remained, and could not inherit. If this bo law, the plaintiff not being legitimate in the country of his birth, remains illegitimate, unless the intermarriage of the parents in Pennsylvania legitimated the child in the domicile of its origin. Many of the civil law writers hold that the domicile of the origin of a person determines in all other jurisdictions the question of legitimacy. Nevertheless, in our consideration of this case, we have excluded this question and passed upon the rights of the plaintiff as though born in Pennsylvania.
Wheaton, in his treatise on International Law, says : 11 That as a general rule, a status (citizenship, legitimacy, majority, and the like), acquired by persons in one jurisdiction, attaches to and travels with them wherever they afterwards reside.” (§ 84 of the editions by Dana or Boyd.) But, in the succeeding sections, 85-93, he states, among other exceptions to the general rule, that real estate is controlled by the lex loci rei sites, instead of by the status created by other jurisdictions.
Wharton, in his treatise on the Conflict of Laws, sums up the question m this language: “§ 243a. So far as concerns succession to personalty, it has been generally stated, that when a natural son is entitled to succeed by the laws of the father’s last domicile, he is entitled everywhere, and that as to the general status of legitimacy, the law of such last domicile is conclusive. But as to land, the limitations of the lex rei sites must prevail.”
Dicey, in his treatise on the Law of Domicile, states the rule in the same way. (Rule 35, pages 181-193.)
Story, in his Conflict of Laws, says: if a person is legitimated in a country where domiciled, he is legitimate everywhere, *514•'and entitled to all tbe rights flowing from that status, including the right to inherit. This conclusion is reached after an examination and comparison of the conflicting views of the writers upon the civil law, whose writings are extensively quoted in the fourth chapter of the Conflict of Laws. The opinion of the learned commentator is entitled to great respect, but we think ought not to prevail against the authorities above cited, and especially as the writers from whom he quotes are very much in conflict, and he fails to cite any English or American authorities in support of his views. The citation of a few sections would not do the learned author, or the subject, justice. His views, and the reasons for his conclusion, cannot be satisfactorily understood without a thorough examination of chapter 4 of the Conflict of Laws, nearly all of which is relevant to this subject.
The comity existing between foreign States does not require the courts of this State to respect the laws of another State which, in effect, regulates the transmission of real property situate in this State. Nor is the rule changed by reason of the question arising under the laws of one of the United States.
Section 1 of article 4 of the Constitution of the United States provides : “ Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State, and the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.” Bjr an act of Congress of May 26, 1790, it is provided that such acts and records, duly authenticated, “shall have such faith and credit given to them in every court, within the United States, as they have .by law or usage in the courts of the State from whence the said records are, or shall be taken.” (1 U. S. Stat. at Large, 122.)
Madison said hi regard to this section of the Constitution (Federalist, No. 42): “The meaning * * * is extremely indeterminate.” Notwithstanding this constitutional provision, and the legislation under it, the Federal and State courts, except in the case of Scott v. Key (11 Louisiana Annual, 232), have uniformly held that the statutes of one State cannot affect the transmission of lands in another State. (Story’s Conflict of Laws, §§ 430-431; McCormick v. Sullivant, 10 Wheat., 202; McGoon v. *515Scales, 9 Wall., 27.) In McGoon v. Scales it was said : “ It is a' irinciple too firmly established to admit of dispute at this day - bat, to the law of the State in which land is situated, must we. *■ >ok for the rules which govern its descent, alienation and trans-R el*, and for the effect and construction of conveyances. ”
The first clause of the second section of the fourth article of the Constitution of the United Slates provides, that: “ The citizens of each State shall be entitled to all the privileges'and immunities of citizens in the several States.” This clause does not embrace and protect rights conferred by a State upon its citizens incident to the marriage contract. Only privileges and immunities pertaining to citizenship are secured by this provision. (Conner v. Elliott, 18 How., 591; Corfield v. Coryell, 4 Wash. C. C. R., 371-880.) Under this clause citizens of other States are entitled to the same rights conferred upon our own citizens, but not to ¡ greater or different rights. (Livingston v. Van Ingan, 9 Johns., 507-577; Lemmon v. The People, 20 N. Y., 562.)
Restating the question involved in this controversy, its determi- ■ nation turns upon whether the word illegitimate, in our' statute regulating the descent of lands, is to be given its' common law signification, or its meaning under the civil law.
The family is the basis of all civilization. In the Roman empire the marital relation was not the exclusive/nor hardly the chief fountain head of the family, and consanguinity was not one of its distinguishing features. Concubinage was recognized, and the head of the family might incorporate in it, strangers in blood, and children born out of wedlock, as well as those born in wedlock'. Members of the family so formed were entitled to succeed to the estate of the head, without regard to the ties of consanguinity. Under this system, the word “legitimate,” when used in connection with the family, became descriptive of the status of persons, instead; of the circumstances of their birth.
The corner stone of the family of English civilization is the \ marital relation, and consanguinity is its chief distinguishing feature. It is the policy of the common law to make the most tender and important of human alliances permanent, instead of transitory, and to encourage the early union of those who, having' formed irregular connections, are capable of entering, into the *516marriage contract. Permitting the legitimation of children long after their birth, by the marriage of their parents, would not tend to the establishment of families through that relation. This is not the place to draw a comparison between the civilizations founded upon the two systems. Several States have adopted in whole, or in part, the rule of the civil law. But this State has not, and the Legislature of another State cannot thrust it upon us.
We think, until the rule is changed by the Legislature, that the common law meaning of the word “ illegitimate ” must prevail.
The judgment is affirmed.
Since the above opinion has been in print the attention of the reporter has been called by Judge Follett to the case of Fenton v. Livingston (5 Jurist [N. S.], part 1, page 1183), to the effect that the statute of Merton ñ only declaratory of the common law.