
    NORTHROP et al. v. TROUP. SAME v. CLEMENTS.
    (Circuit Court of Appeals, Fifth Circuit.
    April 9, 1912.)
    Nos. 2,190, 2,191.
    Wills (§ 481)—Evidence—Admissibility of Will.
    Both at common law and under Civil Code Ga. 1895, § 3257, a devise of real estate takes effect on the death of the testator, and not at the time of the probate of the will; and in an action of ejectment by a devisee to recover lands in Georgia, the fact that the will was not probated in that state until after the institution of the action does not render it inadmissible in evidence.
    [Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1005-1007; Dea Dig. § 481.*]
    In Error to the Circuit Court of the United States for the Southern District of Georgia.
    Actions at iaw by George P. Northrop and others, executors, against Joshua Troup and against J. B. Clements. Judgments for defendants, and plaintiffs bring error.
    Reversed.
    See, also, Northrop v. Columbian Lumber Co., 186 Fed. 770, 108 C. C. A. 640.
    J. N. Talley and Eldridge Cutts (Haygood & Cutts and Talley & Heyward, on the brief), for plaintiffs in error.
    Alexander Akerman (John D. Pope, Sam S. Bennet, and Charles Akerman, on the brief), for defendants in error.
    Before PARDEE and SHELBY, Circuit Judges, and MAXEY, District Judge.
    
      
      For otter oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rop’r Indexes
    
   PER CURIAM.

The questions involved on these writs of error are with one slight exception identical with those in Northrop v, Columbian Lumber Company, decided by this court February 7, 1911, and reported in 186 Fed. 770, 108 C. C. A. 640. The only exception is in the ruling of the trial court in the present cases that the will of Claudius B. Northrop, plaintiffs’ ancestor, was not admissible in evidence, because not probated in the state of Georgia until after the institution of the action, while in Northrop v. Columbian Lumber Company, supra, the will was admitted on the trial, and the effect thereof • disputed in this court.

As, in our opinion, in the case above referred to, title under a will is shown to vest at the time of the death of the testator, and not at the time of the probate of the will, and as we then considered Deas v. Sammons, 126 Ga. 431, 55 S. E. 170, 7 Ann. Cas. 1124, and other cases cited in the briefs, it seems to be clear that the will of Claudius B. Northrop was admissible in evidence, and that for the reasons given in Northrop v. Columbian Lumber Company, supra, the judgment in each of the above entitled and numbered cases should be reversed, and the cause remanded, with instructions to award a new trial.

And it is so ordered.  