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The opinion of the court was delivered by

Bennett, J.

Several questions were reserved on the trial in the county court, which are not now relied upon, and such will be passed over without notice.

It is now insisted that the county court erred in permitting the records of the probate court to go to the jury. The statute, (Slade’s Ed., p. 351, § 86,) provides, that all wills devising real estate, assignments of dower, &c., or certified copies of them, shall be recorded in the town clerk’s office in the town where said lands are situated; and, by another provision, if the lands are situated in an unorganized town, the record must be in the county clerk’s office in the county in which the land is situate. In the present case it appears that the will and the probate of it were recorded in the county clerk’s office at the time of the trial, though not when the suit was commenced; and the question arises, shall the plaintiff, for this cause, be precluded from a recovery in this action ?

In the case of a deed it is well settled, that, if it is recorded in the proper office at the time it is given in evidence, it is sufficient Harrington et al. v. Gage, 6 Vt. 532. The record is not necessary to the passing of the title to the grantee, but only affects the deed as matter of evidence. The statute, which requires a will of real estate to be recorded in the office where deeds of land are to be recorded, does not make their recording a condition precedent to the passing of the estate. The fee passes to the devisee under the will; and though, in the case of Harrington et al. v. Gage, it was held that the statute, requiring a record of so much of the proceedings of the court .of probate, as affect the title, to be made in the *629town clerk’s office, was imperative, yet, in that case, no such record had been made at the time of the trial. In the present case, and for the purpose of sustaining this action, the record, when made, may be considered as having relation back to the time when the right accrued under the will.

It is now said that the records furnish no evidence of title in the plaintiff, or in those under whom he claims. It is true the statute provides that no action shall be sustained by any heir, or heirs, devisee, or devisees, until such estate be set off to them by an order of the probate court. Slade’s Ed., p. 346, § 63. It is to be remembered that the whole of lot No. 6, in Harris’ Gore, is, by the will of Roswell Waters, given to Clark Waters, under whom the plaintiff claims title. In Hubbard v. Ricart, 3 Vt. 207, it was held that the above statute applied only to cases where a division might be necessary; and, in this case, there is no pretence that the executor has a lien upon this land. The will of Roswell Waters was probated in 1834, and letters were then granted to the executor; and, in 1841, Clark Waters, the special devisee of this lot in the Gore, deeded it to the plaintiff, whose deed was put upon record in June, 1842. In such case it is to be presumed that the lien, which the executor might have had, has been satisfied; and as no division of this lot can, in any event, be necessary, this devisee might well, upon the authority of the case in 3 Vt. Reports, maintain an action without it.

We think there can be no ground of objection to the charge. It puts it to the jury to find that Josiah Pratt not only admitted that Finch owned the land, and that he entered upon it by his permission, but that he entered in fact under him; and that it was the mutual understanding, kept up between the parties, that Finch owned the land, and that Pratt held under him. In such case Pratt is estopped from denying the title of Finch, not only as against him, but also as against those claiming under him.

The judgment of the county court is affirmed.

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