
    *Lessee of George Jenkins against John Stouffer and David Jenkins.
    Devise of lands to three sons in fee, but if either of them die without children, then the same to be equally divided among the other children, or to be sold and the money divided among them, and executors appointed in trust for the purposes and intents in the will, and overseers appointed to see it well performed: on the death of one of the sons without children, the surviving executors may sell the lands devised to him.
    Ejectment for lands in Caernarvon township.
    John Jenkins being seized of the premises in fee, made his last will bearing date the 2 5th August 1774, wherein he devised a certain tract of land to his son John in fee, paying 200I. to two of his brothers; and to his son Isaac the lands in question in fee, paying 150I. to a brother and sister; and to his son Joseph other lands in fee. Then follows this clause; “ it is also my “will, that if any, or either of my sons, John, Isaac or Joseph, “ die, having no child or children lawfully begotten, that after “ the decease of such son or sons, the land I have given to him or “them, be equally divided among all my other children or their “ heirs, or to be sold and the money divided among them, as “aforesaid.” He further appoints his sons, John, Isaac and Joseph, sole executors of his will, “in trust for the purposes “and intents in his will contained,” and Jacob Morgan, esq. and Robert Clemor, overseers of his will, “ to take care and see it “well performed, according to its true intent and meaning.”
    
      The testator had six sons and one daughter, all of full age at the time of making his will. One of the sons, George, died in his father’s life time, leaving issue a daughter. Isaac, the de-visee, died intestate, without wife or children. The lessor of the plaintiff claims one sixth part of the lands devised to Isaac, as the only child of William, one of his brothers.
    The overseers of the testator’s will, by a written instrument, dated 23d May 1783, approve of the surviving executors selling the lands devised to Isaac, and were of opinion, that the money arising therefrom should be divided into six equal shares.
    In February term 1790, an amicable action was entered by the lessor of the plaintiff by his guardian, Isaac Jenkins, against the surviving executors of his grandfather, which was referred by consent; and in May term following, the referees reported to the Court of Common Pleas, that the lands devised to Isaac could not be divided without the greatest injury; that they should be exposed to sale, and the money be equally divided amongst the surviving children or their representatives, which was confirmed by consent.
    On the 1st June 1790, the lands were accordingly put up at public vendue, and sold to David Jenkins, (the father of David Jenkins, one of the defendants, to whom the same were devised,) and the surviving executors conveyed the same to him by deed, dated 8th April 1791.
    * •, *The plaintiff’s counsel contested the authority of the 4-* surviving executors to sell under the terms of -the will, it not being expressed therein who were to sell.
    Messrs. Ingersoll and Montgomery, pro quer.
    
    Messrs. Dallas and Hopkins, pro def.
    
   The court declared their opinion, that the law authorities fully warranted the sale. (2 Leon. 220. 1 Cha. Ca. 176. 2 Dall. 223. Sav. 72. Dy. 371. b.) No doubt can arise on the testator’s intention as expressed. The lands were to be divided on the contingency happening, or to be sold, and the money divided among the children. The executors were appointed in trust for the purposes and intents in his will, and the overseers were to take care to see it .well performed, according to its true intent and meaning. All concurred in the act, and thé sale fiiust be considered as legal, without resorting to the proceedings in the Court of Common Pleas.

The plaintiff’s counsel took a bill of exceptions hereon, without arguing the point.

The fairness of the sale was also contested, and a number of witnesses examined, but the jury readily found a verdict for the defendants.  