in the Massachusetts court the action above referred to, alleged that her petition in that case was one "for separate maintenance and that the issues involved in the present action were in nowise considered in that action. . that said

petition was dismissed upon the understanding that in case the relationship of husband and wife should be established between the plaintiff and the defendant by said Supreme Court, and upon the proceedings pending therein, the petition for separate support was to be renewed, and said judgment of said Probate Court, the County of Suffolk, Commonwealth of Massachusetts, entered on or about the twenty-fifth day of March, 1897, did not determine the questions at issue in the present proceedings, and was entered with leave to renew the said proceedings, as hereinbefore set forth."

There was a finding of facts in the present case by the Supreme Court of New York, one of which was that the plaintiff and the defendant were duly married before the Justice of the Peace as above stated, and that after such marriage they lived and cohabited together as husband and wife up to June 1st, 1891, and that she was never married to any person other than the present defendant. The court, by its final decree, set aside and vacated the decree of April 9th, 1888, annulling the marriage before the Justice of the Peace, and adjudged that the contract of marriage thus evidenced was in full force and effect. But that decree was affirmed by the Appellate Division. It is stated in the opinion of the Court of Appeals that there were several trials and appeals in this case to the Appellate Division. Everett v. Everett, 48 App. Div. 475; 75 App. Div. 369; 89 App. Div. 619.

Finally, the case was carried to the Court of Appeals of New York, where the judgment was reversed February 21st, 1905, 180 N. Y. 452, but, for reasons stated in the opinion of that court, the reversal was with directions to dismiss her complaint upon the merits. That decree is now here for review.

It appears from its opinion that the Court of Appeals of

New York adjudged the decision in the Probate Court of Massachusetts to be conclusive, as between the parties, as to the question whether the plaintiff was the wife of the defendant, entitled to be regarded as holding that relation to him. The Court of Appeals of New York said (p. 459): "The Massachusetts judgment was based upon the petition of the wife and it was founded upon the allegation that she was the defendant's wife; that he had deserted her and had failed to contribute to her support. These allegations of fact were put in issue by the defendant and must have been determined by the court. An exemplification of the judgment record in the action which annulled the marriage was presented to the Probate Court and admitted in evidence. The court had jurisdiction of the parties and the subject-matter of the controversy, and its judicial power extended to every material question in the proceeding. The determination of the court that the plaintiff was not entitled to the relief demanded in her petition must be deemed to have included the question as to the validity of her marriage. In other words, the court must have determined the question whether the petitioner was in fact the defendant's wife, and this involved an inquiry with respect to the question whether at the time of her marriage before the Justice of the Peace at Brooklyn she had another husband living. There was evidence before the court on that question, since the record of the judgment annulling the marriage in this State was before it. That judgment of a sister State was entitled in the present action to full faith and credit under the Constitution of the United States, any statute, rule or procedure or even any constitutional provision in any State, to the contrary notwithstanding. The provision of the Federal Constitution with respect to the force and effect to be given to the judgments of other States, and the act of Congress passed in pursuance thereof, is the supreme law of the land, and any statute or rule of practice in this State that would tend to detract or take from such a judgment the force and effect that it is entitled to under the Federal Constitution

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and in the State where rendered must be deemed to be inoperative. So we think that that judgment was conclusive upon the parties to this action with respect to all the questions which were involved in the proceedings and decided by the court, and clearly one of those questions was the status of the present plaintiff. She alleged that she was the defendant's wife, and this allegation must be deemed to have been negatived by the decision in the proceeding."

The court, in addition, considered and disposed of some questions of a non-Federal nature in respect to which the trial court was held to have erred. But it thus concluded its opinion (p. 464): "There are many other questions in this case which have been discussed at length upon the argument and are to be found in the briefs of the respective counsel, but it is unnecessary to consider them. We think that the judgment must be reversed, and as there appears to be at least one conclusive obstacle to the plaintiff's success, a new trial would be useless, and so the complaint should be dismissed upon the merits." The one conclusive obstacle thus found to be in the plaintiff's way was the judgment of the Massachusetts court in the action brought by the plaintiff in error against the defendant in error.

Mr. Frank H. Stewart, for plaintiff in error, submitted: The dismissal of the complaint by the state court was upon the ground that the action of the probate court in Massachusetts was a "conclusive obstacle" to the plaintiff's success. This involved the determination of the effect in Massachusetts of the action of said probate court, in accordance with § 1, Art. IV, of the Constitution and of § 905, Rev. Stat. See Mills v. Duryee, 7 Cranch, 481; McElmoyle v. Cohen, 13 Pet. 312, 326; Crapo v. Kelly, 16 Wall. 610, 619.

The determination by the courts of one State of the effect to be given to the judicial proceedings of a sister State is open to review by this court upon writ of error. Huntington v. Attrill, 146 U. S. 657.

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Particularly when the highest court of a State has decided against the effect which it was claimed proceedings in another State had by the law and usage of that State. Green v. Van Buskirk, 7 Wall. 145. See also Andrews v. Andrews, 188 U. S. 28; Crapo v. Kelly, 16 Wall. 621; Gt. West. Tel. Co. v. Purdy, 162 U. S. 335; Huntington v. Attrill, 146 U. S. 684; Harding v. Harding, 198 U. S. 325.

That in the present case the New York court has given too great effect to the Massachusetts proceedings, instead of too little, does not render its decision any the less reviewable by this court. Board of Pub. Works v. Columbia College, 17 Wall. 521, 529; Wood v. Watkinson, 17 Connecticut, 500, 505; Suydam v. Barber et al., 18 N. Y. 468, 472; Warrington v. Ball, 90 Fed. Rep. 464.

The state court erred in determining that the effect of the judicial proceedings in the probate court of Massachusetts was to render res judicata the issue raised by the complainant in this case.

The issue in this case is one which the probate court of Massachusetts did not and could not pass upon by actual decree, or affect by the legislative part of that decree. See Statutes of Massachusetts, chap. 153, § 33.

The issue in this case was not rendered res judicata by the judicial proceedings in Massachusetts.

It was not a fact which was, or could have been, litigated or decided in Massachusetts. See Kerr v. Kerr, 41 N. Y. 272.

The issue of this case was not a matter necessary to be determined by the Massachusetts probate court in the action taken by it.

The petition was simply dismissed. The ground for dismissal may have been any one of the grounds set up. There is nothing in the record to show that the Massachusetts court did not reach its result on some ground other than that which, it is contended, renders that result res judicata.

It cannot therefore be held, upon the face of the record, that there was identity of issues and resulting res judicata. Umlauf

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v. Umlauf, 117 Illinois, 584; and see Harding v. Harding, 198 U. S. 337, 338.

It is clearly the law of Massachusetts, of New York, and the general law that, when a general result may have been reached by the determination of any undeterminate one of several facts, no particular fact is conclusively determined. Stannard v. Hubbell, 123 N. Y. 520; House v. Lockwood, 137 N. Y. 259; Stokes v. Foote, 172 N. Y. 327, 342; Burlen v. Shannon, 99 Massachusetts, 200; Lea v. Lea, 99 Massachusetts, 493; Foye v. Patch, 132 Massachusetts, 105, 111; Stone v. Addy, 168 Massachusetts, 26.

The issue of this case was not in fact a matter determined by the Massachusetts probate court.

The burden of proof was upon the husband, for it is the defendant who sets up the estoppel. Vaughn v. O'Brien, 57 Barb. 491, 495; Foye v. Patch, 132 Massachusetts, 105, 111; Cromwell v. Sack, 94 U. S. 351.

The issue in this case was not rendered res judicata because the alleged decree in Massachusetts did not import a decree on the merits.

The entry in the Massachusetts probate court, "Petition Dismissed" does not necessarily import a decree on the merits. And a consideration of the extrinsic evidence shows that there was a voluntary dismissal on the part of the wife at a time when she had a perfect right to dismiss her petition, which dismissal was acquiesced in by the husband and permitted by the court. The mere fact that the court did not see fit to grant her request that the decree should contain the customary technical words "without prejudice" is not conclusive upon her rights. Lanphier v. Desmond, 187 Illinois, 382; Haldeman v. United States, 91 U. S. 584.

And, since the decree purported only to deny to the wife affirmative relief, it did not bar a new application on her part for separate maintenance. Buckman v. Phelps, 6 Massachusetts, 448; Pettee v. Wilmarth, 5 Allen, 144.

For the Court of Appeals to hold the contrary was to deny