Tuck, J.,
delivered the opinion of this court.
The object of the present suit is to recover real estate to which the appellants allege themselves to be entitled as heirs at law of Rachel Colvin, in the face of her will devising the same to the appellee, after it had been contested on issues framed under the Act of Assembly and admitted to probate by the orphans court. The proceedings on the caveat, to which the appellants were all parties, as offered in evidence by the defendant, show that the merits of that controversy, embracing the mental capacity of the deceased and the question whether undue influence was exercised over her at the time of making the will, were fully passed upon by the court of law to which the issues were sent for trial, and by the Court of Appeals on exceptions taken at the instance of the caveators. The question before us is, how far those proceedings are to be taken as final and conclusive on the questions to which we have adverted, to wit: the testamentary capacity of the testatrix, and the influences under which her will is said to have been made, [553]*553it being asserted on the part of the appellee, in his prayer, that they are, as against ihe plaintiffs below, not merely prima facie, but conclusive evidence that the paper writing purporting to be and set up as her will, was executed and published by her, when she was of sound and disposing mind, and capable of executing a valid deed or contract, and that ihe same was not executed under the influence of suggestions and importunities which her mind, from its diseased or enfeebled state, was unable to resist; ihe appellants insisting, on the contrary, that in an action concerning her land, said proceedings are only prima facie evidence that the paper is her will.
It is certainly a very important case, involving, as it does, a large amount of property, and especially so, as affecting a well established fundamental principle of the law, that the merits of a claim once discussed and passed upon by a court of competent jurisdiction, and a final judgment obtained by either party, shall not be afteiwards inquired into in another cause between the same parties. And, if we felt ourselves at liberty to apply the doctrine of estoppel, there is motive enough for doing so in this case, as well on grounds of general policy^ as to prevent further cosily and protracted litigation. But., after the best consideration we have been able to bestow upon the Acts of Assembly and adjudged cases having any bearing on the subject, we have not been able, in the face of the Act of 1831, ch. 315, to bring the case within the principle of the common law to which we have referred—a branch of jurisprudence that was fully and elabora!ely investigated at the bar, with a force of argument and illustration seldom exceeded in any tribunal.
The will under which the appellee claims title, disposes of both real and personal property. As to the latter the probate is final and conclusive—binding all persons. By the Act of 1715, ch. 39, sec. 29, (Bacon’s Laws, Deputy Com. Guide, 4,) the commissaries were empowered to take probate, “even though the wills concerned titles to land.” The Act of 1798, ch. 101, authorizes probate in the orphans courts, of wills respecting personal property or appointing an executor, there being nothing said of wills devising real estate only, or of such [554]*554as disposed of both kinds of property, in which respect it differed from the Act of 1715; nor is there anything said of the effect of probate. The construction, however, always has been, that, as to personalty, the proof of the will in the orphans court cannot be questioned elsewhere. What effect on the title to land probate of a will disposing of lands and other property had under the Act of 1798, need not now be determined, since the present case must be considered with reference to the Act of 1831, ch. 315, in connection with previous legislation on the same subject. And, conceding that prior to 1831, a will admitted to probate after the manner observed in reference to. .this will, would, on the general principles advanced by the appellee’s counsel, have had a conclusive effect in behalf of the devisee as against the parties to the caveat, if we find the Act of 1831 restricts such effect upon the rights of the heir at law, the former Act must yield.
Upon considering this Act of Assembly, and collating its several provisions, we think the language, interpreted by itself, is too plain to admit of any other meaning than that placed upon it by the appellants’ counsel. The first section provides that the orphans courts, and, in their recess, the.Registers of Wills, shall have power “to take the probate of any will, testament or codicil, whether the same has relation to real or personal estate, in the same manner that the original Act (1798) authorizes the said courts or registers to take the probate of wills, testaments and codicils, containing any disposition, relative' to goods, chattels or personal estate, which said probate, as concerns real, estate, shall be deemed and taken only as prima facie evidence of such will, testament or codicil.” The design of the law-makers appears'to have been to confer jurisdiction that had been denied by the Act of-1798, and though not as fully in effect as to. land as, perhaps, was conceded to the commissary’s probate under the Act of 1715, yet. so far efficient as to throw the burden of proof on these who might set up a claim to land adverse to title under the will. By this Act probate is to be taken “in the same manner” as under the previous law, which we understand to imply that it may be in common form, or in the more solemn [555]*555form of a plenary proceeding, by allegation, answer and proof, or by the finding of a jury upon issues transmitted for trial to a court of law. Probate means proof of the will by the proper tribunal, and the law gives effect to the probate without reference to the manner of admitting the will to record. We said, in 3 Md. Rep., 462, and 4 Md. Rep., 393, that the obvious purpose of granting issues is to enable the orphans court to advertise itself of the real facts in the case. When ascertained they are the basis oí the court’s final action, in admitting or rejecting the will. The finding of a jury on issues can amount to nothing until acted upon by the court, which has authority to admit or reject the paper, it has no greater force than tiie evidence of witnesses rendered in the orphans court on a plenary proceeding, in the absence of a final effective act of the court itself upon the whole case before it.
It is said that the prayer was not that the proceedings were conclusive proof of the will, but merely of mental capacity and freedom from undue influence, and that, as against the plaintiffs, the finding of the jury is, at all events, conclusive upon these matters of fact. This seems to imply that if the appellee were relying on the proceedings as evidence of the will, they would be merely prima facie proof, which the appellants could rebut, and the inquiiy arises, whether one portion of the record can be so segregated from the rest as to give greater effect to a part than the whole would be entitled to if relied upon as the final judgment of the court upon the subject matter. This, we think, cannot be done. The consequence would be to give to the verdict on the issues, a conclusive absolute effect on the rights of the parties, when the order of the court, whose province it is to receive the finding of the jury and proceed upon it by a final act of jurisdiction, would be merely prima facie
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Tuck, J.,
delivered the opinion of this court.
The object of the present suit is to recover real estate to which the appellants allege themselves to be entitled as heirs at law of Rachel Colvin, in the face of her will devising the same to the appellee, after it had been contested on issues framed under the Act of Assembly and admitted to probate by the orphans court. The proceedings on the caveat, to which the appellants were all parties, as offered in evidence by the defendant, show that the merits of that controversy, embracing the mental capacity of the deceased and the question whether undue influence was exercised over her at the time of making the will, were fully passed upon by the court of law to which the issues were sent for trial, and by the Court of Appeals on exceptions taken at the instance of the caveators. The question before us is, how far those proceedings are to be taken as final and conclusive on the questions to which we have adverted, to wit: the testamentary capacity of the testatrix, and the influences under which her will is said to have been made, [553]*553it being asserted on the part of the appellee, in his prayer, that they are, as against ihe plaintiffs below, not merely prima facie, but conclusive evidence that the paper writing purporting to be and set up as her will, was executed and published by her, when she was of sound and disposing mind, and capable of executing a valid deed or contract, and that ihe same was not executed under the influence of suggestions and importunities which her mind, from its diseased or enfeebled state, was unable to resist; ihe appellants insisting, on the contrary, that in an action concerning her land, said proceedings are only prima facie evidence that the paper is her will.
It is certainly a very important case, involving, as it does, a large amount of property, and especially so, as affecting a well established fundamental principle of the law, that the merits of a claim once discussed and passed upon by a court of competent jurisdiction, and a final judgment obtained by either party, shall not be afteiwards inquired into in another cause between the same parties. And, if we felt ourselves at liberty to apply the doctrine of estoppel, there is motive enough for doing so in this case, as well on grounds of general policy^ as to prevent further cosily and protracted litigation. But., after the best consideration we have been able to bestow upon the Acts of Assembly and adjudged cases having any bearing on the subject, we have not been able, in the face of the Act of 1831, ch. 315, to bring the case within the principle of the common law to which we have referred—a branch of jurisprudence that was fully and elabora!ely investigated at the bar, with a force of argument and illustration seldom exceeded in any tribunal.
The will under which the appellee claims title, disposes of both real and personal property. As to the latter the probate is final and conclusive—binding all persons. By the Act of 1715, ch. 39, sec. 29, (Bacon’s Laws, Deputy Com. Guide, 4,) the commissaries were empowered to take probate, “even though the wills concerned titles to land.” The Act of 1798, ch. 101, authorizes probate in the orphans courts, of wills respecting personal property or appointing an executor, there being nothing said of wills devising real estate only, or of such [554]*554as disposed of both kinds of property, in which respect it differed from the Act of 1715; nor is there anything said of the effect of probate. The construction, however, always has been, that, as to personalty, the proof of the will in the orphans court cannot be questioned elsewhere. What effect on the title to land probate of a will disposing of lands and other property had under the Act of 1798, need not now be determined, since the present case must be considered with reference to the Act of 1831, ch. 315, in connection with previous legislation on the same subject. And, conceding that prior to 1831, a will admitted to probate after the manner observed in reference to. .this will, would, on the general principles advanced by the appellee’s counsel, have had a conclusive effect in behalf of the devisee as against the parties to the caveat, if we find the Act of 1831 restricts such effect upon the rights of the heir at law, the former Act must yield.
Upon considering this Act of Assembly, and collating its several provisions, we think the language, interpreted by itself, is too plain to admit of any other meaning than that placed upon it by the appellants’ counsel. The first section provides that the orphans courts, and, in their recess, the.Registers of Wills, shall have power “to take the probate of any will, testament or codicil, whether the same has relation to real or personal estate, in the same manner that the original Act (1798) authorizes the said courts or registers to take the probate of wills, testaments and codicils, containing any disposition, relative' to goods, chattels or personal estate, which said probate, as concerns real, estate, shall be deemed and taken only as prima facie evidence of such will, testament or codicil.” The design of the law-makers appears'to have been to confer jurisdiction that had been denied by the Act of-1798, and though not as fully in effect as to. land as, perhaps, was conceded to the commissary’s probate under the Act of 1715, yet. so far efficient as to throw the burden of proof on these who might set up a claim to land adverse to title under the will. By this Act probate is to be taken “in the same manner” as under the previous law, which we understand to imply that it may be in common form, or in the more solemn [555]*555form of a plenary proceeding, by allegation, answer and proof, or by the finding of a jury upon issues transmitted for trial to a court of law. Probate means proof of the will by the proper tribunal, and the law gives effect to the probate without reference to the manner of admitting the will to record. We said, in 3 Md. Rep., 462, and 4 Md. Rep., 393, that the obvious purpose of granting issues is to enable the orphans court to advertise itself of the real facts in the case. When ascertained they are the basis oí the court’s final action, in admitting or rejecting the will. The finding of a jury on issues can amount to nothing until acted upon by the court, which has authority to admit or reject the paper, it has no greater force than tiie evidence of witnesses rendered in the orphans court on a plenary proceeding, in the absence of a final effective act of the court itself upon the whole case before it.
It is said that the prayer was not that the proceedings were conclusive proof of the will, but merely of mental capacity and freedom from undue influence, and that, as against the plaintiffs, the finding of the jury is, at all events, conclusive upon these matters of fact. This seems to imply that if the appellee were relying on the proceedings as evidence of the will, they would be merely prima facie proof, which the appellants could rebut, and the inquiiy arises, whether one portion of the record can be so segregated from the rest as to give greater effect to a part than the whole would be entitled to if relied upon as the final judgment of the court upon the subject matter. This, we think, cannot be done. The consequence would be to give to the verdict on the issues, a conclusive absolute effect on the rights of the parties, when the order of the court, whose province it is to receive the finding of the jury and proceed upon it by a final act of jurisdiction, would be merely prima facie evidence of the will; for it cannot be overlooked that the point of the appellee’s prayer goes to the very foundation of the plaintifls’ pretensions as heirs at law, to wit, the supposed incapacity of the testatrix. The issues at law are merely in aid of the jurisdiction of the orphans court, and. the affirmance by the Court of Appeals adds nothing to the force of the proceeding as a judicial act. It. is all the while [556]*556a proceeding within the probate powers of the orphans cottr8. State vs. Reigart, 1 Gill, 29. And when the Act of 1831! speaks of probate, it is to be understood as referring to the act of the court or register, as the case may be, and not to any part of the proceedings on which the probate may be allowed.
If that Act did not contain this clause, it might be intended' as a necessary conclusion, that the Legislature designed to give to probate of wills of realty the same effect which had always been ascribed to probates of those disposing of personality, or appointing an executor, upon the ground that they operate in rem, and bind all persons, 2 Greenlf. Ev., sec. 672. But here there are qualifying words, which we must suppose were designed to have some effect, and, in the absence of anything in the Act tó indicate the contrary, it is but reasonable to impútelo Ike Legislature the purpose of limiting the effect of the court’s proceedings, according to the import of the language employed.
The sixteenth section also shows that the action of the orphans court was not to be final. It makes the Register’s office a place of deposit for wills of which probate shall have been taken, and provides for their being used at trials of issues, “devisavit vel non," or at the trial of any issue involving the will. Whether this section has reference to issues from the Chancery court, or to issues sent from the orphans court, or to any case at law or in equity, is not clear, but it demonstrates plainly enough that further contests, involving the will, were contemplated as likely to arise in other courts, after probate had been taken by the orphans court, and no mention is made of the effect that the probate should have, when granted, after a contest.
An argument was predicated on the tenth section, which provides for the sale of lands by executors, as showing that the orphans court was to have greater power over wills of land than was conceded by the appellants’ counsel; that is, that the power to executors to sell and convey, implied a jurisdiction to grant probate that would be effective to pass the title to a purchaser. Mere probate in common form would not have such conclusive effect as to lands. The words of the Act are toes [557]*557plain for that construction: indeed, it is not claimed on the part of the appellee. If, therefore, this argument can be based on the tenth section, in aid of the present defence, the result would be, that a purchaser under a will admitted to probate upon issues, and the finding of a jury, would be protected in his purchase, when one claiming under a less formal mode of taking probate, might lose the land. We do not suppose that the Legislature meant so to discriminate between cases of the kind. The words of the law do not show any such purpose, and however we maj'' agree with counsel as to the propriety with which a wider scope might have been given to one mode of probate over another, where the same questions had been passed upon between the same parties, as the Act of Assembly makes no distinction, but refers to probate generally, we can only treat it as a casus omissus, which courts cannot supply. 10 Md. Rep,, 278.
In giving this application to the Act of Assembly, we no more do violence to the maxim, “interest reipublicm ut sit finis litium,” or to the doctrines of the law of estoppel, than does the common law itself, when it allows the validity of wills, as to land, to be questioned in actions of ejectment, after probate in solemn form. The ecclesiastical courts have no jurisdiction of matters concerning the realty, and the probate gives no validity to the will, as to such property, whether taken in common form or per testes after summoning all parties in interest, and a full hearing. In view of the principles of estoppel, as sought to be applied here, it can make no difference that this probate was granted after a finding on issues, for the rule does not depend on the mode of trial so much as on the jurisdiction and judgment of the court. A case heard and determined by submission to the court is as effective, as an estoppel, as if passed upon by a jury. Probate by the orphans court establishes the v/ill as to personal estate, whether taken in one way or another; it has the same effect as a judicial act, when taken upon a plenary proceeding as after the finding of a j ury on issues. And, as to land, the effect is not varied according to the mode of proceedings. The mere affidavit of the witnesses on propounding the will, the caveat, answer and [558]*558proofs on a plenary proceeding before the court without issues* and the finding on issues when framed* are but means of proving the instrument on which it is to be admitted to record or rejected. It is the order of the orphans court, at last, to which we must look to ascertain what has been done on propounding the will, and, when its proceedings are relied upon* the Act says, that the probate, as to lands, must be deemed and taken only as prima facie evidence of such will.
(Decided August. 13th, 1859.)
Constrained by what we take to be the correct interpretation of the Act of 1831, ch. 315, we dissent from the ruling below, and reverse the judgment.
Judgment reversed, and procedendo ordered.