#### Den on demise of James Whitted and Attilia his wife v. Samuel Williams.

From Franklin.

A. devised Ms lands to Ms son Henry, Ms daughter Peggy, and the child his wife was then ensient with, as tenants in common; and declared that on the coming of age of Ms son Henry, it should be at his option to have the land sold or not: if sold, the money arising therefrom was to be equally divided between Mm and the other two children; and the executor was authorised to sell the lands, if Henry should wish it, and divide the money.

A. died in 1793, and his wife soon afterwards was delivered of a daughter, who shortly thereafter died. The widow married, and had issue, a daughter named Attilia. Peggy died in May, 1796, and Attilia was born in September following. Henry, on arriving at age in 1807, sold the land; Attilia now claimed one-fourth part of the lands, and brought an ejectment against Henry’s alienee. Pending the suit, the executor executed a conveyance to Henry’s alienee.

Attilia is not entitled to recover any part of the lands, whatever right she may have to a share of the money for which they were sold: nor can the Court in this action take any notice of her claim for a share of the rents wMch accrued before the sale.

The Court here would direct the Defendant to pay the costs of tliis suit, if a question upon that point had been submitted; but, as it is not submitted by the case sent up, no decision here can be made on it.

This was an action of ejectment brought to try the title which the lessors of the Plaintiff claimed to one undivided fourth part of a tract of land situate in Franklin county. John Kinchen, being seised of the land, made and published, in writing, his last will duly executed to pass his real estates, and therein devised the land in question “ to se his son Henry Martin Kinchen, his daughter Peggy te Kinchen, and the child his wife was then ensient with, (e as tenants in common; and declared that on the coming “ of age of his son Henry Martin, it should be at his “ option to have the land sold or not: if sold, the money “ arising therefrom was to be equally divided between iS Mm and the other two children; and the executors were empowered to sell the land, if Henry Martin should *157 ,s wish it, and to divide the money.” John Kinchen died in December, 1793, and shortly after his death his widow was delivered of a child, who was named Lucretia, and who soon thereafter died. The widow then intermarried with William Nash, by whom she had issue, Attilia, wife •of the lessor of the Plaintiff. Peggy Kinchen died on the 9th of May, 1796, and Attilia Nash was born in September following. The third of the land to which Lucretia was entitled under the demise, having upon her death become vested in Henry Martin and Peggy, James Whit-ted now claimed upon the dSath of Peggy one-fourth of the land, in right of his wife Attilia, as one of the heirs at law of Peggy Kinchen; and also claimed one-fourth paid of the rents which had accrued since Peggy’s death.

Henry Martin Kinchen, on arriving at age, conveyed the land to the Defendant on the 29th August, 1807, and the executor of John Kinchen executed a conveyance to the Defendant after the bringing of this suit. It was submitted to the Court to decide whether the lessor’s of the Plaintiff be entitled to recover.

HaxIi, Judge,

delivered the opinion of the Court:

In this action the Court cannot decide the claim which the lessors of the Plaintiff set up for a share of the rents •, and as to the claim which they set up for one-fourth part of the land, the Court must give judgment for the Defend dant. The testator directed his executor to sell his land if his son Henry Martin, on his arrival at age, should wishit. The acting executor has conveyed the land to the Defendant, in conformity with the wishes of Henry Martin after his arrival to age. The Defendant, therefore, holds the lands under the will of John Kinchen, the devi-sor, who was the rightful owner of them, and the Plaintiffs cannot recover them, nor any part of them. Whether they be entitled to any part of the money for which the land was sold, will be decided when the question shall be properly submitted to the Court. It cannot he decided in *158this action of ejectment. It is said, in the argument, that as the deed was made to the Defendant since the institution of this suit, the Plaintiff is entitled to damages for trespass, although he cannot recover the land. This Court would, no doubt, so decide, were that point submitted j but, as it is not submitted, we cannot undertake to decide it.