The Chancellor.
So far as the personal estate of the decedent was concerned, the surrogate had exclusive original jurisdiction to try and determine the validity of the will; and the decision of this court, upon the appeal fr om his decision, is binding and conclusive in all courts and places, until it shall *626be reversed, upon an appeal to a higher tribunal. It is in the nature of a proceeding in rem, to which any person having an interest may make himself a party by applying to the proper tribunal before which such proceeding is had; and who will therefore be bound by the sentence or decree of such tribunal, although he is not in fact a party. (Scott v. Sherman, 2 Wm. Black. Rep. 977. Hart v. M'Namara, 4 Price’s Rep. 154, n.) But, in the present case, there is nothing in the bill or answer to show that the heirs at law of Fisher were parties to the proceedings before the surrogate, or in the appeal to the chancellor. And the vice chancellor had no right to look beyond the bill and answer, for the purpose of ascertaining whether the complainants, or Mrs. Sawyer, were parties to that proceeding, so as to make the decision of a particular fact, litigated on the appeal, personally binding upon them in a subsequent litigation as to the real estate of the decedent. If the heirs at law of Fisher were not in fact parties to the proceedings before the surrogate, and on the appeal to the chancellor, so as to have made the decision in that case conclusive against them, as to the capacity of the decedent to make a will, in a subsequent litigation in respect to the real estate, if the decision of the chancellor had been the other way, they certainly cannot now avail themselves of that decision as binding upon Mrs. Sawyer. (See Case v. Reeve, 14 John. Rep. 83; Burgess v. Lane, 3 Greenl. Rep. 165.)
In. this case, however, even if it had appeared from the bill and answer that the parties to the present controversy were all actual parties to the litigation before the surrogate, and upon the appeal, the decision of the chancellor, acting as an appellate court of probate, against the competency of the decedent to make a valid will of personal estate, would not have been conclusive evidence, in this suit, of the invalidity of the devise of the real estate to Mrs. Sawyer ; although such devise was contained in the same will which was then in controversy as a will of personal property. The general rule is admitted, that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea in bar, or as evidence where it cannot be pleaded as an estoppel, conclusive, as between the same parties, upon the same matter directly in question, in the same *627or another court. But the case of Montgomery v. Clark, before Lord Hardwicke, (2 Atk. Rep. 378,), and the more recent case of Clark v. Dew, before Lord Lyndhurst, (1 Russ, & Myln. Rep. 109,) both of which are referred to in the opinion of the vice chancellor, show that the principle is not applicable to the case now under consideration. And in Baker v. Hart, (3 Atk. Rep. 546,) Lord Hardwicke refers to the case of Maxwell v. Lord Mountague, where the testator was determined to be compos mentis, upon a suit in the ecclesiastical court as to the validity of his will, which determination was affirmed upon an appeal to the court of delegates; but after-wards, upon a trial at law relative to the real estate devised by the same will, he was found to be incompetent. And, although his lordship laments that there should be such different determinations in concurrent jurisdictions,”he says there is no way to make them uniform. I apprehend, however, it was a mistake to call them concurrent jurisdictions; and that this seeming anomaly arises from the fact, that each court has a jurisdiction which is entirely exclusive of the other, in reference to the different interests claimed under the same will: The probate courts having the exclusive jurisdiction and right to decide as to the validity of a will of personal estate; but having no power or authority whatever to determine the right as to the real estate claimed under the will, or to decide any question which can have the effect to deprive the heir at law, or the devisee, of his common law right of trial by jury, so far as concerns the devise of real estate. Without taking up time to inquire more particularly into the reasons for this seeming exception to a general rule, it is sufficient to say that the law appears to be well settled, that the sentence of a surrogate, or of a higher court having power to review his decision, in relation to the competency of the testator to make a will of personal property, is not conclusive, upon the parties to that litigation, in a subsequent suit as to the validity of a devise of real estate contained in the same will. The complainants, therefore, instead of bringing this cause to a hearing, upon the answer of the defendants, Sawyer and wife, which answer insisted upon the competency of the testator and upon the validity of the devise of the real estate, should have filed a *628replication to such answer, so as to give the defendants an opportunity to prove the will in the usual mode. The decree appealed from is affirmed, with costs. But without prejudice to the right of the appellant to apply to the vice chancellor to open the decretal order, and to file a replication, and to take proofs in the cause in reference to the validity of the will set up by the defendants in their answer. And the proceedings are to be remitted to the vice chancellor.