The decree of the Orphans Court was incompetent evidence and was properly overruled. The jurisdiction of that court upon a caveat extends to the will as a will of personal estate, not of real estate. The existence and validity of the instrument as a will of real estate, are open for trial in an action of ejectment, notwithstanding any decree of the Orphans Court either for or against it. This doctrine has been long settled here, and our practice has been uniform and consistent. On Sharp Brown’s will, the verdict and judgment in ejectment, tried at the bar of this court, were against the will, on the question of capacity, although it had been proved before the surrogate and letters testamentary issued. On Benjamin Van Cleve’s will, an ejectment was sustained, although the will had never been offered for probate before the sirrrogate or the Orphans Court. In the case of Harrison v. Rowan, the will of John Sinnickson was sustained on trial in the Circuit Court of the United States for this district, although a decree against the will had been made in the Orphans Court and afterwards affirmed in the Prerogative Court. The same question now raised, was decided by Judge Washington and Judge Pennington. Proof of the decree when offered was rejected; 3 Wash. Cir. Co. Rep. 580. The general doctrine laid down by the defendant’s counsel that a judgment of a court of competent jurisdiction upon the same subject matter is conclusive, is correct, but inapplicable. The subject matter is not the same; the one is a will of personal estate, the other a will of real estate : and over the former, not over the latter, the Orphans Court has jurisdiction. If applicable here, the result would necessarily be that the decision of the Orphans Court rvould be conclusive, and the existence and validity' of the will could not afterwards be tried in ejectment; a consequence to which we cannot, and ought not to yield. The rule in some of the other states, to which we have been referred, depends on their statutes, and furnishes no guide here.

*156The witness was not directly interested in the event of the suit, whereby he was neither to gain nor to lose. If any interest existed, it was of so remote and contingent a nature as to raise no obstacle to his competency.

The question of capacity is peculiarly proper for a jury. No sufficient case is made out to induce us to entertain the present motion. Where this question has been submitted in an unexceptionable manner to the jury, and the judge expresses no dissatisfaction with their verdict, this court will seldom interfere.

Drake, J. expressed himself to the same effect.

Ewing, C. J. concurred.

Rule to show cause refused.