Lessee of Jacob Kolb against John Komp, 3 Yeates 164

Yeates, J. declared, that he thought the lands continued liable to the lessor of the plaintiff for the amount of the just balance due to him for his tenth part, charging him with interest and crediting him with a proper proportion of the profits. The will is void as to him, by the express words of the act of 1764, and his father as to him died intestate. The authority granted to executors to sell lands, is no more binding on a posthumous child, than if such a power was given by a will, when a man was unmarried, and he afterwards married and had children.

But a posthumous child is only entitled to partition, where it may be made without prejudice to, or spoiling of the whole estate devised, and neither he nor his vendee can hold the share on any other terms than as subjected to a valuation, in case the premises would be injured by a division. As to him however, the father dies intestate, and nothing that the executors can do, can change his security from realty to personalty.

Brackenridge, J. declared his opinion during the argument, that the lessor of the plaintiff being put on the same footing with the other children, clearly answered the object of the law; and the executors having sold the lands for their full value, under a proper authority in the will, the premises were discharged from *all lien, and the lessor of the plaintiff was confined [*168 to the executors for his remedy. On the next day, he expressed great doubt and seemed to retract his opinion, respecting the liability of the lands.

The plaintiff suffered a nonsuit, under the direction of the court, with liberty to move the same again, if he should think proper.