
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV., 1812.
    Elnathan Haskell and others v. Andrew House.
    Testator devises the restand residue of his estate, to he soldhy his exe-< cutors, and the money arising from such sale, after paying debts, to be 'equally divided between his widow and children, and appointed his widow and two others, executors. Held that the executors have a naked authority, and that the legal estate descends to the heirs.
    Colonel William Thomson,'by his last will in 1796, duly executed, devises as follows. “ I will and devise that all the restand 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 Thomson, Rebecca Hart, Charlotte Haskell, Harriet Cochran, William Jones Middolten and Eugenia Lewis, to them and to their heirs forever. Lastly, I do nominate, constitute and appoint my wife Eugenia Thomson, my sons William Russel 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 against the defendant, to recover lands, included in the residue of testator’s estates; it was objected by the defendant, that the action should be in the name of the executors, and of this opinion was the presiding judge, who nonsuited the plaintiff.
    Motion to set aside the nonsuit.-
    Stark, for motion. Egan, contra.
    
   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 authprise 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 nonsuit should be set aside.

The other judges concurred.  