5th May, 1810.

delivered the opinion of the court. At the time the deed of conveyance was executed by the widow and daughter of Dr. Hailey, in quality of heir, the estate had been legally sold by Dr. Hailey’s executor, in pursuance of a power given by the last will of Dr. Hailey, empowering his executors, or the survivors of them, to sell. The pretended heir, then, had no estate, even admitting she might enter as heir. She could not rep-represent the testator in selliug this property, for it was already dis. posed of by his executor. The trust was executed. But she could not take as heir, but as residuary legatee, under the will. She could not represent the testator as heir, because he did not die intestate as to this property, or any other part of his estate. It is not a case within the meaning of the law relative to double conveyances.

New trial granted.