The opinion of the court was delivered by
No questions are reserved in this case, except those which arise upon the face of the papers introduced by the plaintiff, for the purpose of showing title to the premises demanded. The only question, therefore, which the court have deemed it necessary to decide, is, how far the devises, upon which the plaintiff relies, can avail him. They were never filed and recorded in any probate office in this state, until since the bringing of this suit. At the last term of this court, in the same case, it was decided, that the probate of the wills in the state of Rhode Island could not avail the plaintiff in this state. Since that time the requisite probate has been made in this state.
It is true that the plaintiff must recover upon his title, as it existed at the time of bringing suit, but the recording of deeds, necessary to their being read, may be done at any time before the trial. When the deed is recorded, it takes effect from the delivery. So in this case, it is the death of the devisor that vests the title. At common law, no probate of a devise or will, disposing of real estate, was required, or was of any avail. In this state such probate is indispensable, as the probate court have exclusive jurisdiction of the proof
The question, whether the land named in the devise is the same land sued for, was one of fact for the jury, and not subject to revision here.
Judgment affirmed.