
    COLUMBIA JVbvember Term 1812.
    Elnathan Haskell and others vs. Andrew House.
    STARK for Motion.
    EGAN Contra.
    Testator devi~.esthe rest and r'sklne of his estate to be sold by his ex eculors & the money arising from sirch sale ater paying debts to be equally chvideclbe tween his `widow and childi'c�n and ap pointed h~s widow and two others executors. }1~ld that the execu tors have naked au thority and that the legal estat' de s~ends to the heirs.
    Colonel William Thomson by his last will in 1796 duly executed devises as follows. I will and devise that all the rest and residue of my estate both real and personal be sold by my executors and `that the money arising from such sale together with my outstanding debts be appropriated in assistance to the provision herein before made to the payment of my debts; and the balance to be equally divided between Eugenia Thomson William Russel Thom son Rebecca Hart Charlotte Hashell Herriet Cochran William Jones Middolten and L'ugenia Lewis; to them and to their heirs foreyer." Lastly I do nominate constitute and cp oint my wife E~ genia Thomson my sons William Russe Thomson and JOhn Paul Thomson executors to this my last : will and testament.
    No sale of the residue was made and the present action being brought the defendant to re cover lands included in the residue of testator's es tates; it was objected by the defendant that the ac tion should be in the name of the executors: and of this opinion was the presiding Judge who non suited the plaintifF.
    
      Motion to set aside the nonsuit.
   Nott, J.

The will in this case gives the executors a bare, naked authority; they have no interest in the land itself. Until they exercise their power, therefore, it descends to the heirs. Co. Lit. 236. a. The will does not even authorise them to bring suit for'the land ; they were obliged to make use of the names of the heirs. I am of opinion, therefore, that the non-suit should be set aside.

The other Judges concurred.  