*555Dissenting opinion of
Mr. Justice Judd:This is an action of ejectment to recover possession of the real property of one Nakuapa, (w) deceased intestate, the plaintiffs claiming to have inherited the property as cousins of the decedent. The defendants claim as grantees of one Kapepa, and plead a decree of the Supreme Court, of the 31st day of October, 1873, in the matter of the estate of said Nakuapa, in probate, by which the said Kapepa was decreed to be the half brother and next of kin and heir at law of said intestate.
The rule of law is clear that “the judgment of a Court of concurrent jurisdiction directly upon the point, is, as a plea, a bar, and 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, fora different purpose.” Duchess of Kingston’s case.
The question of the greatest difficulty in this case is as to the indentity of the causes, of action in both suits. In the first action the petition was for distribution; the present action is ejectment. It is not necessary that the form of action should be the same in each, if the merits of the whole claim have been substantially tried in the first action.—Lawrence vs. Vernon, 3 Sumner, 20. But the judgment must be in respect of the same fact or title.—Outram vs. Morewood, 3 East, 346. In the first action the subjedt matter was the deceased intestate’s personal property, and who were entitled to it as distributees. The parties to the former decree and their privies are concluded by the adjudication of this question. “Nemo bis vexaripro eadem causa.”
The administrator would be fully protected in passing the personal property over to the distributee named, according to the decree.—Loring vs. Steinman, 1 Met., 204. But in order to give this binding effect to a judicial decision, the Court must have jurisdiction of the subject matter as well as of the parties.
*556Tbe case Loring vs. Steinman, 1 Met., 204, goes to the extent of declaring that the decree of a Probate Court naming the distributees of personal property is a proceeding in tern. Chief Justice Shaw says, “In many eases Courts of peculiar jurisdiction have jurisdiction of the subject matter absolutely, and persons are concerned incidentally only, according to their respective rights and interests; and we think the distribution of an intestate estate is analogous. The subject matter, the property, is within the jurisdiction of the Court, and the judgment by determining who are entitled to distributive shares, and extending to the entire estate, determines that no other persons are entitled, and is necessarily conclusive, because nothing further remains to be distributed.”
The property over which an administrator has jurisdiction are the assets, that is, from the French word assez, what is sufficient to make him chargeable to a creditor and a legatee or party in distribution so far as the property extends. — 2 Williams Exors, 1406.
Real estate or any interest therein is not assets to be administered by the administrator.—Dean vs. Dean, 3 Mass., 258. Drinkwater vs. Drinkwater, 4 Mass., 353.
The annual rents and profits of the real estate of the deceased, even though insolvent and due after the decease of the intestate, are not assets in the hands of the administrator but belong to the heir, and the authority to inventory real estate is given only by statute.—Gibson vs. Farley, 16 Mass., 280.
The fee of the real estate is not in abeyance, it descends to the heirs, the moment the breath is out of the ancestor’s body — and the administrator has no authority over it. How then can the decree of distribution made by the Probate Court affect real estate ? and how can those in possession of the land, be they tenants, tenants in common with the intestate, heirs at law, grantees, mortgagees in possession, what*557ever may be their claim of title, be affected by a decree of a Probate Court which has not by law any jurisdiction over the real estate or its claimants.
There is nothing in our statutes, nor in the adjudged cases, certainly nothing on principle, which calls the claimant of real estate, which was of a deceased intestate, to come into the Probate Court and make good his claim.
An heir at law might or might not make any effort in procuring evidence to substantiate his relationship to the deeebefore the Probate Court, knowing that the assets only were to be distributed. In this case the notice in the newspapers, which in probate takes the place of a summons, recites the amount of money in the administrator’s hands, and that he asks that a final order may be made of distribution of the property in his hands to the persons thereto entitled.
The decree of October, 1873, in the case before the Court, undertakes only to distribute the property in the hands and under the control of the administrator, (which means only the personal estate,) to Kapepa. If the plaintiffs knew that by statute law, or by adjudged cases or on principle, they were to be concluded as to their inheritance in the land by the force of that decree, a very different showing on the evidence might have been made.
A party should not be concluded by a judgment in a prior suit or prosecution where from the nature or course of proceedings he could not expect that its consequences would be so serious and where he could not avail himself of the same means of defence, or redress, which are open to him in the second suit.
In New York State, before the statute of 1837 was enacted, which places wills of real and personal estate upon the same footing and prescribes that the probate of a will is conclusive evidence as to its validity, it was held, that sentence of a Surrogate, or of a higher Court having power *558to review his decision, in relation to the competency of a 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. Bogardus vs. Clark, 4 Paige, 623.
In an English case, Maxwell vs. Montague, which is quoted in Bogardus vs. Clark, a testator was held non compos in the Ecclesiastical Court as to the will of personal estate, and was held to be compos at law where the title to the real estate was tried. The Court say, “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 othei’, in reference to the different interests claimed under the-will; the Probate Court having the exclusive jurisdiction and right to decide as to the validity of a will of personal estate, but having no power or authority yehatever 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 devisees, of their common law right of trial by jxxry, so far as concerns the devise of real estate.”
The parties are entitled to their jury and their trial at common law, and the remedy -to enforce its judgment.
It is no answer to this objection to say that by statute of' 1864, a jury may be called to try issues of fact, in pi’obate, for, the appellate, though the Supreme Court, is still a Pi’obate Court and its jurisdiction is the same. Peters vs. Peters, 8 Cush., 542.
s The question in the first case is, who is entitled to the personal estate ? In the second case the question is, who is entitled to the land ?
It may be that, in the particular case at bar, the narrower question, “is Kapepa half brother to Nakuapa?” may be decisive of the present case, but the subject matter, the. *559different property, is so entirely distinct in each ease, that the former judgment ought not to be held as conclusive. “If one claim as heir to his father and fail, he will not be estopped from afterward claiming as heir to his mother. ” 1 Stark Ev., 254.
In Outram vs. Morewood (above quoted), Lord Ellen-borough says, “a judgment therefore, in each species of action, is final only for its own proper purpose and object and' no further.”
To say that the question of the “heirship” of Kapepa was within the jurisdiction of the Probate Court, and to admit that such a Court has no jurisdiction over the title to real estate, are inconsistent positions. In my opinion the adjudication of the question of the “heirship” of Kapepa, so far as it is decisive of the only matter of which the Probate Court had jurisdiction, to wit, the distribution of the personal estate, cannot be stretched so as to bar the present suit, which is a question of title to real estate. It does not seem to me to be just or equitable or according to the principles of law, to take part of a decree of an inferior Court of limited jurisdiction, and say that it sweeps away the claim of the alleged heirs of an intestate to the real property; the property of which the Probate Court could know nothing and over which it had no jurisdiction.
It has been” said that all the tedious proceedings had in the Probate Court in the matter of the estate of Nakuapa (the intestate in this case) would be rendered nugatory unless the Court shall hold that the final determination thereof bars the present action. This is true; but if this Court should hold that Probate Courts have no jurisdiction to try such questions, when the intestate’s estate is only land, an immense amount of useless labor and energy would be saved in the future.
I am therefore of the opinion that as the proper purpose and object of the proceeding in the Px’obate Court was the *560distribution of the personal estate, the decree made is final only for that purpose and object, and is not a bar to the present action.
Honolulu, June 8th, 1874.