¶1delivered the opinion of the court.
¶2By the agreement of the parties, recently filed in this court, all the various questions which have been discussed, are withdrawn from our consideration, except that which seeks a reversal of the Chancellor’s order appealed from, on the ground that the appellee is not made to account for the balance of rents and profits accruing from the real estate of James Williams, the testator, and received after his death by his executor, Neth.
¶3In the will of James Williams, his real estate is not devised to his executors, to be by them sold; but is given to his residuary devisee, his nephew, with a power to his executors to sell such parts as they might think proper and necessary, for the payment of debts and legacies. The executors possess only a naked power to sell; until the exercise of which, the estate passes in fee simple to the devisee; who, only under the will, is authorized to receive the rents and profits thereof. Should they have been collected by his executor, Neth, his receipt of them is without authority, and he must account to the devisee, or his representatives. And there is no difference in this respect, between rents received before, and after the chancellor’s decree of September, 1825. The only office of that decree, as far as the delegation of power was concerned, being to clothe one executor with the authority invested by the testator in three.
¶4In deciding the question submitted to us, we have based our opinion exclusively upon the facts, as presented by the record. Whether as an abstract question, upon a legatee’s bill, properly framed, with the necessary averment of the insufficiency of the real and personal assets, exclusive of these rents to pay debts and legacies, the appellee could be made to account for them, we have formed, and mean to *424express no opinion; nor how far, in the event of his being so accountable, that accountability is discharged, by the alleged amounts due him from James Williams, the devisee.
¶5THE ORDER OF THE CHANCELLOR AFFIRMED, BUT WITHOUT COSTS IN EITHER COURT.