delivered the opinion of the court.
This is an appeal taken by the plaintiff from a judgment rendered in favor of the defendants in an action of ejectment. The lessors of the plaintiff claim title to the land in controversy under patents granted by the commonwealth to John May, who died in 1790 or 1791, and they derive their right through conveyances made by John L. May and Daniel Eppes, and Polly his wife, the only children and heirs of John May, as well as of Ann May his wife, who afterwards intermarried with Thomas Lewis, but died without issue by her second marriage some years before the commencement of this suit and prior to the conveyances made by John L. May and Daniel Eppes and Polly his wife.
The main question in the cause is, whether John L. May and Daniel Eppes and Polly his wife, were entitled to the land in controversy or not, when they made the conveyances through which the lessors of the plaintiff derive their claim. The solution of this question depends essentially upon the construction of John May’s will. The clauses of the will which have a material bearing upon this point, are the following, viz: “I give and devise my land to my executors, herein after named, and to the survivors and sur- . ‘‘vivor of such of them as may act, and their heirs forever, “for the purpose of selling as much thereof as will pay all “my debts of every description.” And after giving various powers and directions to his executors, and disposing of the remainder of his estate, he says — “I do give to the survl-“vor and survivors of my executors, or such of them as “as shall act, all the powers and authorities hereby intended to be given them jointly, in case they should all act» “and do empower the survivor or survivors to act accord
Now it is contended for the defendants, that by the will of John May an immediate estate for life in all his lands, was vested in his executors, with a contingent remainder in fee to the survivor of them, subject to the trust in the will mentioned; and hence it is inferred, that as Harry In-Vis and Wm. May were still living at the commencement of this suit, the right to the land in controversy remained in them, and consequently could not have descended to John L; May and Polly Eppes, either as the heirs of their father or of their mother. But on the other hand it is urged by the lessors of the plaintiff, 1st; That there was conferred by the will upon the executors, only a naked authority to sell; in which case, as the estate in the land was not otherwise disposed of, it must have descended in the mean time to John L. May and Polly Eppes, as the heirs of the testator, until a sale was made by the executor, which has never been done. Or 2dly. If the authority to sell was coupled with an interest, that interest was contingent, and vested only in such of the executors as should act, and only in the event of their acting as executors; in which case the freehold and inheritance not being otherwise disposed of, must in like manner have descended upon John L. May and Polly Eppes, heirs of their father, until some one or more of the executors should qualify or act, and as none of them ever did qualify but their mother, the title of the land could have passed to her only, and on her death must again have descended to them as her heirs. It is therefore inferred that the title must have been in them at the time they made the conveyances, through which the lessors of the plaintiff derive their right.
We have no doubt that the will of John May conferred upon his executors an interest in his lands, as well as an thority to sell. A devise that executors shall sell, confers a mere naked authority^ but a devise of land to the execu
Supposine; then the true construction of the will to be, that the devise to the executors was a contingent or execu-tory one, and that the estate vested in such of them only as should act, and not until they did act, it is clear, according to the settled doctrine of the law, that the freehold and inheritance not being otherwise disposed of, must have descended to John L. May and Polly Eppes, as the heirs of the testator, until some one or more of the executors should act. Whether their mother taking upon herself the execution of the will ih the state of Virginia, was such an acting under the will as would pass the estate to her or not, is not material to be decided. For if the freehold and inheritance did not thereby pass to her, then, as no other executor appears to have acted, the title must remain in John L. May and Polly Eppes, as the heirs of their father; and if the freehold and inheritance did pass to her, then on her death the title must have descended to them as her heirs. So that, be that point as it may, the title must have been in them at the time the conveyances were made through which the lessors of the plaintiff derive their right, and the circuit court erred in deciding otherwise.
The judgment reversed with cost, and the cause remanded for a new trial, to be had not inconsistent with the foregoing opinion.