STORY, Circuit Justice.
The only question in this cause is, whether, in Rhode Island, the probate of a will, by the proper probate court of the state, is conclusive, as to the real estate, as it certainly is, as to the personal estate of the deceased. We all know, that in England the distinction has been constantly maintained, that the probate of a will by the proper ecclesiastical court is conclusive, as to the personalty, but that it is not even evidence, as to the real estate. The reason is, that the ecclesiastical courts have no jurisdiction whatsoever, except over wills of personal estate; and, therefore, the probate thereof, by the sentence or decree of those courts, is wholly inoperative and void, except as to personal estate. The validity of wills of real estate is solely cognizable by courts of common law, in the ordinary forms of suits; and the verdict of the jury in such suits, and the judgment thereon, are by the very theory of the law, conclusive only as between the parties to the suit, and their privies. But it is far otherwise in cases of personal estate. The sentence or decree of the proper ecclesiastical court, as to the personal estate, is not only evidence, but is conclusive as to the validity or invalidity of the will; so that the same question cannot be reexamined or litigated in any other tribunal. The reason is, that it being the sentence or decree of a court of competent jurisdiction, directly upon the very subject matter in controversy, to which all persons, who have any interest, are, or may make themselves, parties, for the purpose of contesting the validity of the will, it necessarily follows, that it is conclusive between those parties. For otherwise there might be conflicting sentences or adjudications upon the same, subject matter between the same parties; and thus the subject matter be delivered over to interminable doubts; and the general rules of law, as to the effect of res judicata, be completely overthrown. In short, such sentences are treated as of the like nature, as sentences or proceedings in rem, necessarily conclusive upon the matter in controversy, for the common safety and repose of mankind. This doctrine was fully considered and established in the great case of the Duchess of Kingston, before the house of lords, 11 Harg. State Tr. 261, s. c. 20 How. State Tr. 538, where Lord Chief Justice De Grey de-dared the opinion of air the' judges. It has, also, on various occasions, been considered and recognized in the supreme court of the .United States; and especially in Croudson v. Leonard, 4 Cranch [8 U. S.] 434; The Mary, 9 Cranch [13 U. S.] 126; Gelston v. Hoyt, 3 Wheat. [16 U. S.] 246; Armstrong v. Lear, 12 Wheat. [25 U. S.] 169; Elliot v. Piersol, 1 Pet. [26 U. S.] 338; and Thompson v. Tolmie, 2 Pet. [27 U. S.] 157. Lord Chief Justice De Grey, in delivering the judgment of all the judges, in the case of the Duchess of Kingston, said, that two deductions seem to follow as generally true: “First, that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea a bar, or, as evidence, -conclusive between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive-jurisdiction directly upon the point, is, in like manner, conclusive upon the same matter between the same parties, coming incidentally in question in another court for a different purpose.”
Now, it is upon the very ground of these principles, and of the courts of probate of Massachusetts having complete jurisdiction over the probate of wills of real estate, as well as of personal estate, that the doctrine has been constantly held in Massachusetts, in entire conformity to the true reasoning, maintained in the common law, that the decree of a court of probate, establishing a will, or setting it aside, as a nullity, has been held conclusive upon the very point, as to all the world, and that it is not re-examinable in any other court. The statutes of Massachusetts (Act 1783, c. 46; Act 1817, c. 190) contain no exclusive words; but merely declare, that a court of'probate shall be held within each county, and a judge appointed “for taking the probate of wills, and granting administrations on the estates of persons deceased." And this has been universally understood, as giving that court, not merely a concurrent, but an exclusive jurisdiction as to the probate of all wills. Osgood v. Breed, 12 Mass. 525, 533, 534; Laughton v. Atkins, 1 Pick. 535, 547-549; Inhabitants of Dublin v. Chadbourn, 16 Mass. 433, 441. But the question now before the court, is one purely of local law, and to be governed exclusively by the actual jurisprudence of Rhode Island. If. therefore, there has been any fixed, and established rule, adopted by the courts on this subject, it will be our duty to follow it. If there has been none, our duty will be to follow out the case upon principle and the known analogies of the law. I am not aware, that there is anj adjudication of the supreme court of Rhode Island on the point, applicable to the present state of its laws. When, many years ago, the question occurred incidentally before this court, in Smith v. Fenner [supra], and in Spencer v. Spencer [supra], no positive or established rule was known; and the most, [43]*43that could be said was, that there was a common opinion, prevailing among the bar in practice, but without any fixed authority to support it. I believe, that it was the opinion at that time of a very eminent person, then district judge, (the late Judge Howell,) that the question was entirely open. Since that period, nothing has been brought to our knowledge, that changes the posture of the question. We must, therefore, dispose of it upon principle, with reference to the laws of Rhode Island.
By the laws of Rhode Island, the probate courts of that state have complete jurisdiction as to the probate of wills, whether the wills respect real estate, or personal estate, or both; and no title can be made to any property, whether real or personal, under any will, unless and until there has been a due probate of such will before the proper probate court. The Revised Statutes of Rhode Island, of 1822 (Dig. 1822, p. 211), provide: “That the town councils in the several towns of the state, be, and they hereby are, constituted courts of probate, and they or the major part of them respectively shall have full power and authority to take the probate of wills, to grant administrations bn the estates of persons deceased, being at the time of their decease inhabitants of or residents in the town, to which such court of probate may belong, and also on the estates of persons, who, at the time of their decease, were not inhabitants or residents within this state, &c., provided any of the rights, credits, or estate of such deceased person shall be found therein.” No distinction is here taken between wills of personal, estate and wills of real estate; and the word “estate,” in the section, equally applies to both. The act goes on to authorize the courts of probate to “make partition of estajes, and assign dower to widows, as prescribed by law”; and gives a right of appeal from the decrees of the courts of probate to the supreme court of the state. It further gives the courts authority to remove executors upon the complaint of an heir, devisee, legatee, creditor, or surety on the administration bond, who may have been injured or exposed to injury; and to appoint an administrator de bonis non with the will annexed. The act of 1822, prescribing; the manner of devising lands, &e., and of disposing of personal estate by will (Dig. 1822, p. 218, § 10), requires such will to be proved, and recorded, or presented in the clerk of probate’s office, by the executor within thirty days after the decease of the testator.
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STORY, Circuit Justice.
The only question in this cause is, whether, in Rhode Island, the probate of a will, by the proper probate court of the state, is conclusive, as to the real estate, as it certainly is, as to the personal estate of the deceased. We all know, that in England the distinction has been constantly maintained, that the probate of a will by the proper ecclesiastical court is conclusive, as to the personalty, but that it is not even evidence, as to the real estate. The reason is, that the ecclesiastical courts have no jurisdiction whatsoever, except over wills of personal estate; and, therefore, the probate thereof, by the sentence or decree of those courts, is wholly inoperative and void, except as to personal estate. The validity of wills of real estate is solely cognizable by courts of common law, in the ordinary forms of suits; and the verdict of the jury in such suits, and the judgment thereon, are by the very theory of the law, conclusive only as between the parties to the suit, and their privies. But it is far otherwise in cases of personal estate. The sentence or decree of the proper ecclesiastical court, as to the personal estate, is not only evidence, but is conclusive as to the validity or invalidity of the will; so that the same question cannot be reexamined or litigated in any other tribunal. The reason is, that it being the sentence or decree of a court of competent jurisdiction, directly upon the very subject matter in controversy, to which all persons, who have any interest, are, or may make themselves, parties, for the purpose of contesting the validity of the will, it necessarily follows, that it is conclusive between those parties. For otherwise there might be conflicting sentences or adjudications upon the same, subject matter between the same parties; and thus the subject matter be delivered over to interminable doubts; and the general rules of law, as to the effect of res judicata, be completely overthrown. In short, such sentences are treated as of the like nature, as sentences or proceedings in rem, necessarily conclusive upon the matter in controversy, for the common safety and repose of mankind. This doctrine was fully considered and established in the great case of the Duchess of Kingston, before the house of lords, 11 Harg. State Tr. 261, s. c. 20 How. State Tr. 538, where Lord Chief Justice De Grey de-dared the opinion of air the' judges. It has, also, on various occasions, been considered and recognized in the supreme court of the .United States; and especially in Croudson v. Leonard, 4 Cranch [8 U. S.] 434; The Mary, 9 Cranch [13 U. S.] 126; Gelston v. Hoyt, 3 Wheat. [16 U. S.] 246; Armstrong v. Lear, 12 Wheat. [25 U. S.] 169; Elliot v. Piersol, 1 Pet. [26 U. S.] 338; and Thompson v. Tolmie, 2 Pet. [27 U. S.] 157. Lord Chief Justice De Grey, in delivering the judgment of all the judges, in the case of the Duchess of Kingston, said, that two deductions seem to follow as generally true: “First, that the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea a bar, or, as evidence, -conclusive between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive-jurisdiction directly upon the point, is, in like manner, conclusive upon the same matter between the same parties, coming incidentally in question in another court for a different purpose.”
Now, it is upon the very ground of these principles, and of the courts of probate of Massachusetts having complete jurisdiction over the probate of wills of real estate, as well as of personal estate, that the doctrine has been constantly held in Massachusetts, in entire conformity to the true reasoning, maintained in the common law, that the decree of a court of probate, establishing a will, or setting it aside, as a nullity, has been held conclusive upon the very point, as to all the world, and that it is not re-examinable in any other court. The statutes of Massachusetts (Act 1783, c. 46; Act 1817, c. 190) contain no exclusive words; but merely declare, that a court of'probate shall be held within each county, and a judge appointed “for taking the probate of wills, and granting administrations on the estates of persons deceased." And this has been universally understood, as giving that court, not merely a concurrent, but an exclusive jurisdiction as to the probate of all wills. Osgood v. Breed, 12 Mass. 525, 533, 534; Laughton v. Atkins, 1 Pick. 535, 547-549; Inhabitants of Dublin v. Chadbourn, 16 Mass. 433, 441. But the question now before the court, is one purely of local law, and to be governed exclusively by the actual jurisprudence of Rhode Island. If. therefore, there has been any fixed, and established rule, adopted by the courts on this subject, it will be our duty to follow it. If there has been none, our duty will be to follow out the case upon principle and the known analogies of the law. I am not aware, that there is anj adjudication of the supreme court of Rhode Island on the point, applicable to the present state of its laws. When, many years ago, the question occurred incidentally before this court, in Smith v. Fenner [supra], and in Spencer v. Spencer [supra], no positive or established rule was known; and the most, [43]*43that could be said was, that there was a common opinion, prevailing among the bar in practice, but without any fixed authority to support it. I believe, that it was the opinion at that time of a very eminent person, then district judge, (the late Judge Howell,) that the question was entirely open. Since that period, nothing has been brought to our knowledge, that changes the posture of the question. We must, therefore, dispose of it upon principle, with reference to the laws of Rhode Island.
By the laws of Rhode Island, the probate courts of that state have complete jurisdiction as to the probate of wills, whether the wills respect real estate, or personal estate, or both; and no title can be made to any property, whether real or personal, under any will, unless and until there has been a due probate of such will before the proper probate court. The Revised Statutes of Rhode Island, of 1822 (Dig. 1822, p. 211), provide: “That the town councils in the several towns of the state, be, and they hereby are, constituted courts of probate, and they or the major part of them respectively shall have full power and authority to take the probate of wills, to grant administrations bn the estates of persons deceased, being at the time of their decease inhabitants of or residents in the town, to which such court of probate may belong, and also on the estates of persons, who, at the time of their decease, were not inhabitants or residents within this state, &c., provided any of the rights, credits, or estate of such deceased person shall be found therein.” No distinction is here taken between wills of personal, estate and wills of real estate; and the word “estate,” in the section, equally applies to both. The act goes on to authorize the courts of probate to “make partition of estajes, and assign dower to widows, as prescribed by law”; and gives a right of appeal from the decrees of the courts of probate to the supreme court of the state. It further gives the courts authority to remove executors upon the complaint of an heir, devisee, legatee, creditor, or surety on the administration bond, who may have been injured or exposed to injury; and to appoint an administrator de bonis non with the will annexed. The act of 1822, prescribing; the manner of devising lands, &e., and of disposing of personal estate by will (Dig. 1822, p. 218, § 10), requires such will to be proved, and recorded, or presented in the clerk of probate’s office, by the executor within thirty days after the decease of the testator. And provisions are also made for the due filing and recording of foreign wills touching real or personal estate in the state, in the proper probate court. Id. pp. 221, 222. By the act respecting intestate estates (Id. pp. 224, 235, § 2), the real estate of the deceased is made chargeable with all his debts, which the personal estate will not satisfy; and the heir or devisee, within three years and six months after the probate of the will or administration, cannot incumber or alien the estate, but the same may be sold by the executor or administrator, for the payment of debts, by a license from the supreme court (Id. p. 235, § 27); and the executors and administrators are to account for the proceeds of the sale to the proper court of probate, by which the letters testamentary were granted. By a later enactment, the like power to license the sale of real estate is extended to courts of probate. Neither is it left to mere inference, whether the power of courts of probate to make partition or division of real estates, applies merely to cases of intestacy; for it is expressly provided, that it shall apply, as well to devised, as to intestate estates. Id. 1822, pp. 224, 225, § 3, and page 227, § 5.
These provisions sufficiently' establish, that the probate of wills of real estate is equally within the jurisdiction of the courts of probate, as wills of personal estate. The very right of these courts to assign dower and make partition of estates, demonstrates, that their authority is not limited to personal estate. Now, if the probate of wills of all sorts is within the jurisdiction of these courts, why does not the common, doctrine, which has been already stated, that the decree of these courts, affirming the probate of a will, or disaffirming it, (whether the courts have a concurrent, or an exclusive jurisdiction,) apply in the fullest manner to them? Infinite inconveniences would arise in practice from any other doctrine. Suppose a will should be approved by the proper court of probate, and a partition of the real estate of the testator be made accordingly by the decree thereof, would not such a partition be conclusive upon all the parties in interest? And. how can it be conclusive, if the validity of the will is again reexaminable at the common law, toties quoties, whenever any heir or de-: visee shall choose to contest it? Suppose a will should be pronounced invalid and a nullity by the proper court of. probate, and the court should proceed to decree an assignment of dower, and a division of the real estate among the heirs, as in a case of intestacy; would not such an assignment and division be conclusive? And how can it be, if the validity of the will be again reexaminable at the common law? Suppose a will is approved by the proper court of probate, and the executor is thereby recognized, and after-wards he procures an authority from the supreme court to sell the real estate of the deceased for the payment of debts, can his sale be overhauled, by contesting the validity of the will, or that he is truly executor, in a suit at the common law by any heir? And yet if the probate be not conclusive, how is this consequence to be avoided? Is not the probate conclusive as to the executorship; and how can it be, if there is no valid will? These are but a few of the practical difficulties, which would arise upon the subject. In short, there can be no difference, in point of pmieiple, where the court of probate has [44]*44an absolute and positive jurisdiction, whether the will respects real estate, or personal estate. In each case, the will must be equally open to controversy in all other courts and suits, or it is closed in all. Yet no one pretends, that the probate is not conclusive, as to the personal estate of the testator, and the title of the executor thereto.
It may be added, that by the act of Rhode Island of 1822 (Dig. 1822, p. 212, § 3), upon an appeal to the supreme court in cases of wills, any question of fact in controversy, at the election of either of the parties, may be tried by a jury. Now, as all the parties interested in the estate devised by the will, may make themselves parties to the original proceedings, and also upon the appeal, and the verdict of the jury upon the matters of fact in controversy must be directly upon the very point so put in issue, it would be extraordinary, if any of the -parties in the cause (and all the heirs and devisees are, or may be parties thereto) should be at liberty afterwards to controvert and to bring into contestation the very facts, found by such verdict, toties quoties, in any suit at the common law. That .would be to enable them to defeat the whole purposes of the act, and to prevent the decree from having any effect whatever, or at least, any conclusive effect. So that, until the statute of limitations had operated on the will, and the titles derived therefrom, there would be no repose to any such titles. The act of 1822, in this particular, differs from the antecedent law under the Digest of 1798; and the introduction of this right of a trial by jury was undoubtedly intended to guard against the supposed inconvenience, which might arise from the conelusiveness of a decree of the supreme court upon matters of fact, without the intervention of a jury.
Upon the whole, in the absence of all controlling authorities under the local law, looking at the matter upon principle, I am of opinion, that the probate of the present will by the supreme court of the state, being a court of competent jurisdiction, is final and conclusive upon the question of the validity of the will to pass the real estate in controversy.