¶1Ejectment for land in St. Clair ■county; pleadings in usual form; plaintiff unsuccessful and brings error.
¶2The common source of title is Theodoric Snuffer. Defendants admit that they are in possession of the premises. . Plaintiff claims as devisee under the will of Elizabeth Estes, deceased, she having prior to her ■death bought the premises at administration sale of the •estate of Theodoric Snuffer, and received and recorded a deed therefor.
¶3Defendants claim under an administration sale of the same land as that of Elizabeth Estes, having received a deed from the administrator. The will of Elizabeth Estes was probated before the clerk of the probate court in vacation. Afterward in term time an ■order was entered by that court approving the probate of the will as made in vacation, and on the same day .an order was entered setting aside the order of approval.
¶4On this state of facts the trial court among others gave, at the instance of defendants, this declaration of law:
¶5“The instrument offered in evidence purporting to be the will and testament of Elizabeth Estes, deceased, is excluded from consideration and plaintiff can claim no rights thereunder.”
¶6This declaration of law was properly given. The statutory provisions governing this point, so far as necessary to be quoted, are the following:
¶7“Section 8880. The probate court, or clerk thereof in vacation, subject to the confirmation or rejection by the court, shall take proof of last wills.” R. S. 1889.
¶8The probate of a will is a judicial act. The act of the clerk in admitting the will to probate in vacation, is a mere conditional act; worthless until and unless confirmed by the probate court. Jourden v. Meier, 31 *640Mo. 40; Creasy v. Alverson, 43 Mo. 13; Barnard v. Bateman, 76 Mo. 414. Here, the act of the clerk in admitting the will to probate was confirmed, and then on the same day set- aside. This vacation of the order of confirmation left the will in the same situation as though the confirming order had never been made.
¶9Counsel for plaintiff seem to think that the vacating order did no hurt “because it nowhere disaffirms the action of the clerk in admitting the will to probate;” but this view wholly overlooks the worthlessness of the act of the clerk until it meets with judicial confirmation, which, of course, is an affirmative and judicial recorded act.
¶10As plaintiff’s case proceeds on the theory of his being a devisee under the will, and as that will in contemplation of law has never been established or probated, it is needless to inquire into the goodness of defendants’ title; they are in possession and a better title than theirs must be shown before ejectment brought against them can prove successful. Therefore, judgment affirmed.