shall account the release of him severed is a good discharge to the Defendant as was resolved 48. Ed. 3. 14 15. but this is not a plenary judgement for nothing is recovered thereby but another judgement is to be had after the account which may be against the Plaintiffe so as this release came before any debt or duty adjudged What if the Defendant be had in execution at the suite of the Executor who prosecutes it and escapeth whether may the severed Executor discharge the Sheriffe or Jaylor by a Release I thinke he may not By that above it is plaine that if any one of the Executors Plaintiffes dye the Writ is abated onely where he so dying was before severed opinions have beene different as above appeares So also is it if one of the Defendants Execntors dye Yea if the Plaintiffe Creditor sue A. B. C. as Execuâ—ors where onely A and B. are Executors there by the death of C. the Writ abates or falles to the ground yet A. and B. as I thinke might have pleaded in abatement that they onely were executors traversing that C. was not Executor but the Booke doth not so resolve See 46. E 3 f. 9. 10. As A. and B. above might admit that Writ against them and C. So if the Writ or suiâ—e had beene against A. onely and he so admit it not pleading in abatement the recovery against him alone is good 9. E. 4. 12. One that is Out-lawed or attainted in his owne person may yet sue as Executor because this suite is in anothers right viz. the Testators But he that is excommunicate cannot proceed in suite as Executor because none can converse with him without being excommunicate as a Booke sayes Yet doth not this excommunication pleaded abate or overthrow the suite but make that the Defendant may stay from answering his suite untill the Plaintiffe be absolved and discharged from his excommunication CHAP. X. Of the Possession of Executors or their actuall Having 1. What shall be said so to come to their hands as to charge them 2. What shall be such a getting or going from them as to excuse them WE have before considered what things shall come to Executors and being come shall be Assets in their hands Now for that it is said in Reedes Case that an Executor shall not be charged with or in respect of any other goods than those which come to his hands after his taking upon him the charge of the Executorship Let us now examine what shall be said and accounted such a full and compleate comming to the hands of Executors as shall make them within the reach and charge of Creditors and Legatees viz. For the payment of debts and Legacies As touching debts due to the Testator it hath before beene shewed that untill Judgement and execution had they bee not Assets in the Executors hands Now then as touching other goods or chattels possessory which are of two kindes viz. reall and personall Let us put the Case thus The Testator at the time of his death hath a flocke of sheepe in Comberland Corne in the Barnes in Cornewall Bullockes in Wales fat Oxen in Buckâ—shâ—re Money Household-stuffe and Plate in London a Lease for yeares in Norfolke and his Executor dwelt at Coventry viz. farre from all these places what kinde of possession shall the Law judge this Executor to have in every of these instantly upon the Testators death and before he come where any of the things be either to see or seize upon themâ— In all the particulars above mentioned the Law is all one except the Case of the Lease for yeares which if it be of Land as is most usuall then because it is a setled and immoveable thing the Law doth not reach to it the foote of the Executor to put him in actuall possession for Possessio est quasi pediâ— positio untill himselfe or some for him do actually enter therupon Nor indeed need the Law helpe oâ— supply the want of actuall possession in this Case as in the case of moveables since Land cannot be carried away as goods may and therefore is not subject to purloyning or imbesilment as moveables are But if the Lease for yeares were of Tithes the Executor though in never so remote a place from them shall be instantly upon the seâ—ting out thereoâ— in actuall possession of them so as he may mainetaine an action of Trespasse against any stranger which shall take the Tythes set ouâ— though he nor any for him did ever befoâ—e pâ—ssesse any of the said Tythes or came neere unto them But if the case were of a Lease for yeares of a Rectâ—ry consisting not onely of Tythes but also of Gleabe Lands into which entry may be made as also Livery of season in it then it may perhaps be some question whether such an actuall possession in Tythes shall be given by the Law to an Executor neglecting to enter or not entrying into the Gleabe Land And so I leave the consideration of Chattells Reall Touching things Personall in which the Executor hath such an actuall possession presently upon the Testators death as that he may mainetaine an action of Trespasse against any stranger taking them away or spoyling them though he nor any for him ever came neere them whether yet this shall be such a possession in the Executors and such a comming of these Goods to their hands as to charge them with payment of debts and Legacies yea to make their owne Goods lyable instead of these is a point worthy of consideration And doubtlesse this throughly sifted will prove a case mischievous whether way soever the Law be taken for first it must be admitted that without the Executors laying his hands actually and particularly upon the Goods in the House or Fields of the Testator whether the Executor hath resorted he shall be said so in possession as to stand lyable unto the Creditors so farre as they extend in value though after others purloyne or imbesill them Now then if distance of place shall make difference where shall be the bound and limit of that distance and if the Executor may come at a strangers taking or possessing of the Goods it is mischievous to Creditors On the other side if it shall be said upon the Executors to answer for all the Goods whereof the Testator dyed possessed it will be mischievous for them and deterre them from taking Executorship upon them fince much purloyning may be even of money Iewells and Goods by Servants and others about the Testator or where these things be I thinke therefore that if without any fraud collusion or voluntary conniving on the part of the Executors they be prevented by others of laying hold on the Testators Goods so as that they may dispose of them especially if it cannot be knowne by whom they are so purloyned and imbesilled or if they be persons fled or insolvent that then
shall be said so to come to their hands as to charge them 1 in things reall 130 2 in things personall 132 2 What shall be said such a losing or going from them as to excuse them 137 Chap. XI Of an executor having assets how far and where he is chargeable and lyable to action 1 PAyment of debts by specialty or record 141 2 Of debts or duties by simple contract without specialty 145 3 Of debts without either contract or specialty 149 4 Of covenants charging executors by deed or specialty 150 5 Of wrongs done by testators and how far the executors are lyable to make amends 155 THE OFFICE OF EXECVTORS THe things considerable touching Executors may all in effect be reduced to these three Heades viz. 1. Their Being 2. Their Having 3. Their Doing By the first I intend their creation or constitution with the incidents thereto By the second their Interest Fruition or Possession By the third their Managing and execution of their Office This last was and is the thing principally in my intention and the chiefe ayme of these Discourses but necessarily it must have some Ingredients some Concomitants and some Consequents as he that travelleth from London to Yorke to speake with I. S. must needs passe by thorow other Townes and Villages and speake with divers other persons in his journey and returne To come first to the first therein wee will consider these sixe things 1. Whether an Executor and a Will be such Relatives that one cannot be without th' other and therein of the severall kinds of Wills 2. How and by what words an Executor may be made and created 3. How he may be in speciall manner different from the generall fashioned limitted or qualified 4. Who may make or be made an Executor and who not 5. What one may give or bequeath by Will what not 6. How a will or Executor once made may be unmade and what shall amount thereunto viz. To a revocation totall or partiall what to new Publication Of the relation betweene a Will and an Executor AS to the first the very name of Executor purporteth in the generall one that is to execute somewhat or to whom the execution of somewhat is committed or recommended In our particular therefore an Executor of a Will must needs be such an one to whom the execution and performance of another mans Will after his death is commended or committed Or who is constituted and authorised by the Testator or Will-maker to doe him that friendly office Hence it followes necessarily that a Will is the onely bed wherein an Executor can be begotten or conceived for where no Will is there can be no Executor And this is so conspicuous and evident to every low capacity that it needs no proofe nor illustration On th' other side though much be written in name of a Will many Legacies bequeathed and many things appointed to be done Yet if no Executor be named here is no Will for these two be so relative and reciprocall as that one cannot be without th' other if no Will no Executor if no Executor no Will. Yet here two Cautions are to be affixed 1. That a mans minde will and intent touching the disposition of his goods being declared although for want of naming an Executor he die intestate so as Administration is to be committed Yet for that here is not onely an inchoation or inception of a Testament but so farre a progression therein as Testatio mentis that is the manifestation of the paâ—ty deceased and owner of goods therefore this minde and intention of the Intestate being notified and made knowne to the Judge who is to commit Administration is usually annexed as I take it to the Letters of Administration and meete so to be as a direction for and to the Administrator as well as the Will fully and perfectly made but refused to be proved by the Executor which is usuall Another Caution is That where a man seised of Land in Fee-simple disposeth the same or part thereof by his Will in writing this standeth good for the whole or part according to the difference of Tenure although no Executor be named so as the party dieth Intestate and Administration is to be committed as touching his goods and yet hath a Will as touching his Lands This may seeme strange that the reason thereof is an Act of Parliament inabling to dispose of Land by Will in writing And for that Land is not properly Testamentary neither hath the Executor if any be anything to doe or intermeddle therewith and therefore is the making or not making of an Executor nothing pertinent to the validity or invalidity of this devise or disposition of Land by Will So as though where there is not Testatio mentis there is not Testamentum yet may there be the first without the later Having seene that bequests of Legacies without making of Executors doth not amount to a Will Let us now consider whether the sole making of Executors in the name of a Will without giving any Legacie or appointing any thing to be done by his Executors Whether I say this be or amount unto a Will or not Since hereupon the matter nothing is willed and consequently nothing rests to be executed by the Executors whose Office as hath beene said is to execute the Will Minde and Intent of their Testator and Vbi non est Testatio mentis non est Testamentum saith the Cannonist For answer hereunto confessing that indeede to be the Office of an Executor I yet conceive confidently that in the Case above put there is a good Will and as a Will it is to be proved and approved for these Reasons First for that the maine and principall part of an Executors Office and that which most concernes the soule of the Testator as our Bookes speake is the payments of his debts Now who knowes not but that the very making of an Executor is the constituting of such a person who is to pay all debts and for that cause and end principally is to have and enjoy all the goods and chattels of the Testator and all summes of money to him owing as the naming of A. and B. Executors is by implication a gift or donation to them of all the goods chattells credits and personall estate of the Testator and the laying upon them an Oligation to pay all his debts and making them subject to every mans sute and Action for the same And if the Law speake thus much sense Quod necessario subintelligitur non deest What neede then the party expresse it in his Will If hee had willed more than this as to have given this or that in way of Legacy it had beene needefull for him so to have set downe in his Will but there is no meere necessity that every man should give Legacies the estates of many will not doe more than pay their debts nor oft-times so much so as if they should give
before hath beene shewed So as if one give me his white Horse or blacke Cow by Will or any other well knowne thing I cannot after his death take it though I come where it is but am punishable by action of trespasse at the Executors suite if he doe not assent yet an Executor before the Will proved may give this assent and it will stand good Yea although he dye after any of these acts done the Will being never proved by him yet doe these Acts so done stand firme and good as I take it Yet as I finde an Executor making his Will and dying before he had proved the Will of his Testator his Executor may not prove both the Wills and so become Executor to both the Testators But in case the goods were after debts paid bequeathed to the Executor his Executor may take Administration of the first Testators goods with the Will annexed as by Doctor Drury was in the late Queenes time declared to be the Law and course of the Court Spirituall to which credit was given by the Judges of our Law and the Court of Star-Chamber for though the Booke doe not mention it to have beene in Star-Chamber it is elsewhere so reported Yea an Executor for goods of the Testator taken from him or a trespasse done upon the Lease Land or a Distrayning or Impounding of goods or Cattell may mainetaine before the Will be proved Actions of Trespasse or replevin or deâ—â—nue for these Actions arise upon the Executors owne possession But before the proving of a Will an Executor cannot mâ—inetaine a suite or action of debt or the like And the reason is for that therein hee must shew forth the Will proved under the seale of the Ordinary And so as I take it must it be if he bring any Action for trespasse done or goods taken in the Testators life time so as the Testator himselfe was intitled to the Action and it growes not upon the Executors possession I finde that an Executor granting the next avoydance of a Church which to him came from the Testator the Grantee mainetained a Quare impedit without shewing forth the Will But the Executor himselfe might so have done as of his owne possession before the Will proved and so without shewing it under the seale of the Spirituall Court as well as Actions of Trespasse or Replevin for goods taken after the death of the Testator yet in the Principall case of Greysbrooke and Foxe which was an Action of Detinue by the Executor for goods taken or detained after the Testators death the Plaintiffe did shew forth the Will proved But that proves not any necessity thereof or that if the Will had not beene proved it could be no hurt to shew it forth so upon his own contract for the Testators goods as if the Executor sell Cattell or other goods of the Testator before the Will proved hee may for the money payable mainetaine an action of debt before he have proved any Wil and in this and the action of Trespasse there is no necessity of naming him Executor Also on th' other side an Executor may well enough be sued for debts of the Testator before the Will be proved for he may not by his owne Act of delaying the Probate of the Will keepe off Suites except he will refuse in due manner that so Administration being granted there may be some body Suable by the Testators Creditors for debts by him oweing And the usuall plea of the Defendant to estrange himselfe from the Testament is to say that he neither is Executor nor hath Administred as Executor So as if he either be Executor De jure or De facto by his owne act of Administring it sufficeth Of refusall to prove the Will and therein of Administration forecluding refusall NOw touching this other point fit to be thought of before wee meddle with the Probate viz Refusall to prove we will thereabout consider these severall parts viz. First how and in what manner refusall may or must be Secondly in what Cases or in respect of what acts one named Executor hath lost or determined his election of refusall or acceptance Thirdly of what effect and operation the refusall is what difference where all the Executors refuse and where but some or one of them Fourthly what relation it hath Now touching the first the Ordinary before committing Administration where a Will is made and Executors named if hee know of it must send out Proces against the Executors to come in and prove it and if they doe not come they are to be excommunicate but if they doe come if they nor any of them will prove by reason of such refusall the Ordinary may commit Administration perhaps also they may be appointed Executors at a time future and not presently Now refusall cannot be verbally or by word but it must be by some act entred or recorded in the Spirituall Court and therefore must be done before some Judge Spirituall and not before Neighbours in the Country for that is not effectuall Yet Sir Ralph Rowlett making the Lord Keeper Bacon Catlin Chiefe Justice and the Master of the Rolles Executors they wrote a Letter to the Ordinary that they could not attend the Executorship and therefore wished him to commit Administration who did so making every of their Refusall and this was held good So as a Lease being by that will bequeathed to Catlin and he after this refusall entring and assigning it to one and the Administrator assigning it to another it came in question betweene them whether had best right and Judgement was given for the assignee of the Administrator against Catlins assignee whereas if the Refusall had beene void Catlin had continued Executor and so his title had beene better First in case the Ordinary himselfe be made Executor there saith the Booke hee may refuse before his Commissary and so was it there pleaded for the Arch-Bishop of Canterbury who was made Executor to Sir William Oldhalle What shall be such a medling or Administring by an Executor that he cannot refuse after AS to the second where an Executor hath Administred he cannot afterwards refuse because he hath already accepted of the Executorship and so determined his election at least the Ordinary ought not to accept of such refusall but should compell him to take upon him the Executorship as the Law was taken both in the time of Ed. 4. and of Queen Elizabeth Yet if the Ordinary doe admit one to refuse notwithstanding that he have Administred this standeth good as it seemeth conceived by the Judges in the time of Hen. 6. for there the Executor commanded one to take goods of the Testator out of the hands of I. S. who did accordingly and afterward the Executor refused before the Ordinary and Administration was committed to the said I. S. who brought an action of trespasse against the party so taking the goods from
him and there the refusall and committing administration were admitted to be good so perhaps Factum Valet quod fieri non debuit And it well may be that the Ordinary did not know of the Executors such intermedling at the time when he did admit of his refusall After Refusall and Administration committed the Executor cannot goe backe to prove the Will and assume the Executorship but if onely upon the Executors making default to come in upon Proces to prove the Will the Administration be committed here the Executor may yet at any time after come and prove the Will and so undoe the Administration as was in the late Queenes time resolved betweene Bale and Baxter But what if after refusall it shall appeare to the Ordinary that the Executor had administred before his refusall so as had it beene then knowne the Ordinary should not have admitted him to refuse Whether now may he revoke his administration for it is revokeable and inforce the Executor to proceed to proving of the Will And surely me thinkes hee may for that the Executor by Administring had determined his election and accepted the office of Executorship now he cannot both except and refuse Besides we know that Creditors may maintaine their Sutes against him having once Administred the Common Plea to free himselfe and shew that hee is not the party suable for the Testators debt being that he neither is Executor nor ever did Administer as Executor wherefore hee having administred it will be found against him Now it is not congruous that in the Spirituall Court there should be no Executor and yet in the Courts of Westminster there should be an Executor But since this Point of Administring is so materiall to the Point of being admitted or not admitted to refuse we will here consider in this place briefly what shall be said to be an Administration by an Executor determining his election and disabling his refusall and what not 1. Some will perhaps conceive that the act of the Executor in the fore-mentioned Case where he onely commanded I. S. to take goods of the Testators out of a strangers hands was no Administration and it is true that in that Booke it is passed in silence and not expresly said to be an Administration But the Lord Dyer in the Case of Grâ—isbrooke and Foxe speaking of that Case saith expresly that the Ordinary might there have rejected the Executors refusall for saith he when the Executor had once intermedled he should not have beene suffered to refuse so as he doth clearely admit that to have beene an Administration And else where it is held that if an Executor take goods of the Testator and convert them to his owne use this is an Administratiâ—n yea if hee doe but take them into his hands say some without converting of them If the wife take more apparrell of her owne than is necessary this is an Administration as the Booke admits but if by the assent or delivery of the Executor it is not More clearely If one doe either pay debts of the Testator or receive debts or make acquittances for them or demand the Testators debts as Executor or give away goods which were the Testators or deliver money of the Testators for Fees about proving the Will all these be full and cleare Administrations as Executor But saith Fâ—tzherb if he onely lay out his owne money for Fees this is no Administration so saith Frâ—wicke if he pay debts with his owne money and if he doe it about the Funeralls But some difference may be betweene Acts done by one named Executor and by a stranger viz. to make him an Executor of his owne wrong whereof wee shall speake after not in this place If one being sued as Executor take it upon him and plead in Barre as an Executor this is an Administration Of the force and effect of refusall AS to the third Point viz. the force or effect of Refusall First it is cleare that if there be but one Executor and he doe refuse or being many if they doe all refuse then is the party dead Intestate and Administration is to be committed with the Will annexed as is before said nor can any after meddle as Executors But in case there be divers Executors viz. A. B and C. and A. onely refuseth and the Will is proved by the others there A. continueth an Executor notwithstanding his refusall so as he still may release debts of the Testator and debts owing by the Testator may be released to him yea if Sute be to be had by or against the Executors it shall not be in the name of B. and C. onely but A. also must be named as a Plaintiffe or Defendant else the Action may be overthrowne For the Will being proved all the Executors therein named stand and continue Executors notwithstanding any of their refusall as it was resolved in the later end of the late Queenes time according to divers former resolutions And therefore this Executor which hath refused may afterwards Administer at his pleasure and intermeddle with the goods as well as the others yet saith Brooke Chiefe Justice after the death of his Companion he cannot so doe but then the Executor of him who proved is onely to Administer Quod non est Lâ—x There may be some difference betweene Sutes by Executors and Sutes against Executors for when themselves sue they being privy to the Will and having the Custody of it must bring their Action in the name of all the Executors according to the Will but he that is to bring an Action against them neede not perhaps take notice of more Executors than those that have proved the Will or otherwise doe Admiâ—ister for it is no good plea for themselves in an Action against them to say there is another Executor without saying also that he hath Administred as it seemeth by divers Bookes Nay one Booke in the time of Henry 8. goeth further viz. that if Sute be brought against all yet one of them not intermedling with the proving of the Will may pleade that he was never Executor nor Administred as Executor By this it should seeme that Executors refusing I meane all of them so as no Will is proved they in an Action against them may say that they were never Executors but me thinkes they should not so pleade but shew the speciall matter as was done in the time of Edward the Fourth As for Relation I will forbeare to speake till I come to proving for that Probate and Refusall stand in the same state as touching Relation Of proving Wills NOw let us see touching the Probate of Wills what is considerable and therein of these three or foure parts 1. Where and before whom and how the proofe must be 2. What shall be Bona notabilia to intitle to Probate 3. What force or validity either a right or
the Diocesse of Canterbury and in the Diocesse of Yorke the Will must be proved either before both Metropolâ—taâ—es if within each of their jurisdictions there be Bona Notabilia in divers Diocesses or else as I take it if there so be not in any of the places then before the particular Bishops in those severall Diocesses where the goods are Or if within the one jurisdiction Metropolitane the Testator had goods in divers Diocesses and in th' other but in one Diocesse then in the one place is the Will to be proved before the Archbishop and in the other place before the Particular Bishop as I conceive And so also of peculiar jurisdictions And in some places Archdeacons have peculiar or jurisdiction ordinary and power to take Probates of Wills and Grant Administrations But where any like error or misproving is in these respects it is cause of reversall or of nullity according to the former difference so also if there be falshood in the proofe were it CoÌ„muni forma that is without witnesses or by examination of witnesses yet may it in the Spirituall Court be undone if either dis-proofe can be made or proofe of revocation of that Will once made or of the making of a later Now yet admitting the Will true and right and also rightly proved let us yet see the force and strength of the Proofe or Will so proved It being under the Seale of the Ordinary cannot be denied saith one Booke to wit whether this shewed forth be a Will proved or not no though the proofe be but indorsed on the backe viz. that it is so proved saith the Booke but notwithstanding the Defendant so sued may deny that the Plaintiffe is Executor as not being concluded nor estopped by the Probate so to say And the reason is because the Seale of the Ordinary is but matter in Fact and not matter of Record nor are the sentences of divorce and the like in the Spirituall Court Iudgements or matters of Record as hath beene oftenheld Of the Relation of Probate and Refusall AS for this last Point both the Proving and the Refusall shall have Relation to the death of the Testator as I take it to divers purposes So as to the Proving saith the Lord Dyer expresly and confidently in Greisbrooke and Foxes Case and the resolution also of the Case proves it For there Administration being committed be fore any Will proved or notified to the Ordinary as it should seeme the Administrator sold some of the goods to I. S. and after the Executors proving the Will brought an Action of Detinue for those goods against I. S. who pleaded this Administration and sale and thereupon the Executor demurred and Judgement was given for him as having by the proving of the Will disproved the Administration ab initio but it is true that judgement was given onely by two Judges one being absent and th' other dissenting in opinion yet I thinke it was right and according to Law and that Refusall shall have the like relation else could not the Administration relate to the death of the Intestate as it doth to some purposes expressed in divers Bookes viz. to have an Action of Trespasse for goods taken before Administration committed and to have a rent growing payable in that meane time c. What Fees to be paide upon Probate or for Copyes of Wills or Inventories Per Stat. 21. Hen. 8. Cap. 5. 1. Where the goods amount not above five pound only sixe pence to the Scribe 2. Where they be above five pound but under forty pound two s. sixe d. to the B. B. twelve d. to the Scribe 3. Where above forty pound to be taken but two s. sixe d. to the B. B two s. 6. d. to the Scribe or râ— d. for each ten lines of ten inches long at the Scribes choyce THese Summes are to satisfie both for Proving Registring Sealing Writing Praysing making of Inventories giving Acquittances Fines and all other things concerning the same Where Lands is given to be sold neither the money raised nor the profits thereof shall be accounted as any of the Test ators goods or chattells saith the Statute Note that the Will is to be brought with waxe thereunto ready to be sealed and proofe to be made of the Will according to common Custome For making the Inventory the Executor is to take or call to him two Creditors or Legatees of the Testator and doe it in their presence or in their absence or refusall two honest persons being the next of his kinne or in their default two other honest persons The Inventory is to be indented and one part left with the Ordinary and the other to remaine with the Executor The Executor is to make oath for the truth of it For a Copy desired by any either of a Will or Inventory no more is to be payed than before is allowed for the Registring with the like election to the Scribe or Register as is above-said Master Swinborne saith that an Executor is to sweare and if it should be thought fit to be bound to make a true account when hee shall beÌ„ thereunto lawfully called by theÌ„ Ordinary Of this account see him pag. 274. and of accounting some Bookes of the Common Law make mention as 13. of Edward the third Fitzh Exec. 91. Where Trew faith that of a thing in action no account shall be before the Ordinary but Parn. seemes of a contrary opinion And else where it is said that where a debtor is made Executor to the Debtee he shall yet account before the Ordinary for this debt yea as of money in possession saith one which others denied An Executor by wrong shall be drawne to account before the Ordinary saith Moyle Justice But saith S. German he may not force any to account against the Order of the Common Law not shewing what that is And â—emp Edw. the 4. it is said at least by the Reporter that after the will proved the Ordinary hath no more to doe quod non credo Also of the oath of an Executor divers Bookes tell but not to such purpose as Swinb but truly to performe the Will What things shall come unto Executoâ—s and be Assets in their hands and what not THe things which shall come to Executors are of great multiplicity and would make a large and confused heape if tied together in one bundle or lumpe I will therefore divide and sort them out in parts after the best manner I can First we will divide theÌ„ into things possessary or actually in the Testator and things in action or not actually in the Testator Secondly the possessary into chattells reall and personall or as some lesse properly expresse it moveable and immoveable Of Chattells reall possessary THese may be divided into two kinds viz. living and not living the living are not many and various 1. The wardship of the body of another be it by reason of a
opinion hath beene that these which he hath as Executor should not passe yea the Lord Dyer so held in the late Queenes time with this difference viz. Where the Grantor is named Executor in the Grantee there the Goods which he hath as Executor should passe but otherwise if he be not named Executor in the Grantee and that this opinion is probable will further appeare by that which followeth Secondly the Executor cannot by Will give or bequeath the Goods he hath as Executor and if he dye intestate and Administration of all his Goods is committed to I. D. yet hath he nothing to doe with the Goods which the Intestate had as Executor to his Testator Thus all his Goods reacheth not to his Goods as Executor Thirdly whereas a mans Goods stand liable to the payment of his debts both in his life time and after The goods which a man hath as Executor are not to be taken in execution for his owne debts either upon a Recognizance Statute or Judgement had against him And if such a one dye indebted leaving to his Executor much Goods which he had as Executor these are not Assets in his hands lyable to the payment of his debts but onely for the payment of the first Testators debts or Legacies Therefore a Quo min. brought by an Executor shewing that he was not able to pay the Kings debt because the Defendant detained from him an 100. pound which he owed him as Executor to I. S. was overthrowne for that it could not be intended saith the Booke that the Kings debt could be satisfyed with that which the Plaintiffe should recover and receive as Executor Whereas a Woman being possessed of any Chattells personall viz. moveable Goods all be devested out of her into her Husband by her marriage so as if he dye and she overlive they be not hers againe but her Husbands Executors or Administrators and if she dye all be the Husbands without being Executor to his Wife It is not so of the Goods which shee hath as Executor these still remaine in and to her if her Husband dye and if she her selfe dye for that she hath them as it were in another right viz. as she represents the person of her Testator her Husband shall not have them if he be not his Wives Executor and so Executor to her Testator Lastly whereas the Writ of Trespasse seemes to make no difference betweene ones owne Goods and those he hath as Executor that being a possessory Action or suite grounded upon the possession yet come to an Action of debt which more tastes and participates of the right and there are they differenced for where for my owne debt when I sue the Writ saith Debet detinet viz. that the Defendant owes me and detaines from me that summe Yet when I sue as Executor the Writ saith not debet he doth owe me but detinet onely he detaines from me as admitting that he is not the Debtor to me though he should pay me and so where I am sued as Executor the Writ makes me not a Debtor but a detainer Otherwise where in my owne right I owe and am sued for a debt Accordingly where Judgement in an Action of debt is given against one as Executor it is not generally that the Plaintiffe shall recover against him but he shall recover of the Goods of the Testator and therefore upon this judgement no Capias lyeth against him to inforce him to pay by Arrest of his body because he is not properly debtor but if after it be returned that he hath wasted the Testators Goods out of which the said debt shall be satisfyed Then he having made himselfe a Debtor a Capias ad satisfaciendum shal be awarded against him and then he shall be taken in Execution So also in some cases of false plea pleaded for where the Judgement is de bonis propriis the Plaintiffe may have a Capias ad satisfaciendum and that Judgement is in diverse cases for the dammages although not in many for the principall As for the Capias before Judgement in the meane proces against an Executor that is because of his Contumacy in not appearing upon the former proces The reason of this different interest betweene an Executor and another or betweene the same mans having goods as Executor and others in his owne right as also of the different manner of ones being indebted as Executor and otherwise in his owne right is well expressed by the Lord Cooke in Pinchons case viz. First that the goods which one hath as Executor he hath not in his owne right but in auter droit that is in the right of another meaning his Testator Secondly that Executors are but the Ministers and Dispensors or Distributors of their Testators Goods Of alteration of property in the Executors hands so as some goods become his owne which he had as Executor TO this head or Chapter treating of the difference betweene the Interest in Goods as Executor and others had meerely in ones owne right and to his owne use it is not impertinent to consider how that which one hath at the first as Executor may be changed in property and become the Executors owne to his owne use as other his goods which he had not as Executor Here let us first consider of ready money left by the Testator for since pieces of money viz. shillings groates pieces and halfe pieces of gold cannot bee knowne one from the other it must needes follow that these comming to an Executor from the Testator must in some sort be altered in property so as though the Executor shall be said to have so much in money or value yet can it not be discerned which money in his house was his Testators and which his owne Consequently the Sheriffe upon the fieri facias for a Creditor who hath recovered against the Executor to pay debt owing by the Testator cannot hold CHAP. VIII Of some cases and questions betweene the Executor and the Heire THE Executor may in convenient time after the Testators death enter into the house descended to the Heire for the removing and taking away of the Goods so as the doore be open or at least the key be in the doore and this I understand of the doore of each roome for although the doore of entrance into Hall and Parlor be open the Executor cannot by that justifie the breaking open of the doore of any Chamber to take goods there but onely may take those in the roomes which be open and this is proved as to me it seemes by the case of the chest with evidences which saith the Booke the Executor may take and put out the Deedes delivering them to the Heire viz. the chest being unlocked as I understand it Now a Chamber or other roome within a house locked is an enclosure of better respect then a chest But if the goods be not removed within convenient time the
thereof another reason is given where a man was bound that hee would not sue upon such a Bond and he dyed and his Executor sued this was held to be no forfeiture of the Bond. So where one was bound to pay ten pound within a moneth after request made to him and hee died before request it sufficed not to make it to the Executor as Manwood said It was likewise held that the warrant of Atturney put in for the Plaintiffe in debt sufficeth not for his Executor to bring a Scirâ— Fac. upon the judgement And if Executors sue execution upon a Statute in the name of a Conusee as if hee were alive this is voyd and they may sue out new extent and this they may doe without any Scire facias as well as the Conusee might if he had beene alive But by Hussey Justice if the Conusor in a Statute staple be returned dead by the Sheriffe upon the extent a Scire fac must be sued out before extent proceed and upon a judgement had if the recoverer dye before execution his Executor cannot as himselfe might sue out execution without a Sci. fac as is there said Yet if after a Capias ad sat awarded the Plaintiffe dye before it be executed the Sheriffe may proceed to the taking of the party and is not subject to any action of false imprisonment nay if he suffer him to escape he is chargeable as temp Elizabeth it was resolved upon the motion of Anderson but withall it was held that reliefe might be by Audita querela Like resolution was in the Kings Bench After some doubt by Wray and the other Judges where the Defendant dyed after a Fieri fac awarded and before it was executed that the Sheriffe might proceed upon the Goods in the hands of the Executors But if the Defendant in an action of debt upon a bond plead a tender at the time and place of payment and tenders the money in Court where it rests and then he dyes now shall not the Plaintiffe have this money because the property thereof is changed and become the Executors as was held in the Common pleas but he is put to a new suite against the Executor Yet where judgement is once given in a Writ of Partition for a termer or in a Writ of Account if the Plaintiffe dye before the second judgement needfull in both cases the Executor is not put to a new suite but may proceed by Sci. Fac. upon the former judgement as the Lord Anderson held upon the motion of Fenner Serjeant Though before we found the Executor not in points penall all one with the Testator yet in points beneficiall the Testator includes him in some cases as where an Abbot granted to his Lessee to take Estovers in another ground it was held that his Executor though not named should enjoy this during the terme as well as himselfe should have done And whereas the Stat. 23. of H. the 8. gives costs to a Defendant against a Plaintiffe suing for a wrong or breach of promise or the like done to the Plaintiffe against whom it passeth by verdict or nonsuit it hath beene resolved that an Executor suing upon such wrong oâ— breach of contract to his Testator made should not pay costs because he is another person then the Testator and so is it usuall in experience But if in such suite the Atturney of the Executor mis-behave himselfe towards him and for this the Executor sueth him here if it passe against him in manneÌ„r as aforesaid he shall pay costs because this was a suite for a wrong done to himselfe If A. recover a debt as Executor of I. S. and makes B. his Executor and dye before execution sued B. is not put to new suite but may have execution upon that Judgement But if A. or B. dyed Intestate now could none as Administrator to either of them nor as Administrator of I. S. have execution of this Judgment for the former hath no interest in any thing partaining to I. S. and the latter commeth to title above the judgement viz. as immediate administrator to I. S. who is now dead intestate and derives no title from the Executor who recovered If a Conusee have a Certificate into theÌ„ Chancery upon a Statute and then dyes before extent taken out his Executor is put to a new Certificate and for obtaining of it must make Affidavit that no extent hath yet been taken out If an Alien joyne with his Wife who is Executor in a suite for debt and it commeth to Issue he shall not have tryall per medietatem alienig or Linguae as should be if he otherwise were party to a triall as was held in the case of Doctor Iulio Yet if a noble man sue as Executor to another not noble he shall for his nonsuite be amerced five pound as if he sued in his owne right as was conceived 21. E. 4. 77. By the same rule and reason doubtlesse a Noble man sued as Executor shall not be arrested nor shall any Capias be awarded against him for not appearing And if any triall shall be of any issue there shall be two Knights of the Jury as in other cases where a peere is party Likewise where the Wife is to have her convenient apparell whereof the Executor must not bereave her If she be a noble woman it shal be answerable to her degree If one Executor or onely sell goods of the Testator he alone may mainetaine an Action of debt for the money So if goods be taken out of the possession of one Executor hee alone may mainetaine an action and that without naming himselfe Executor Some touch hath beene before of Summons and severance whereabout be this added If one Executor will not or cannot joyne in suite with the other so as he is summoned and severed now by his death after the suite is not abated 16. Ed. 2. Fitzh 111. yet if he live till judgement he may sue execution say other Bookes 13. Ed. 3. Fiâ—zh Exec. 9. 11. R. 2. Priviledge 2. yet Que. of that for he cannot acknowledge satisfaction as hath beene since resolved Mich. 14. 15. Eliz. Dy. 319. And the reason thereof being because he is no party to the judgement by the same reason can he not sue exeÌ„cution upon it for how can he have execution for whom there is no judgement given now the recovery is onely in the name of the other Executor yea by the said last Booke it seemes that after judgement had he cannot release the debt because it is now altered in nature and turned in rem judicatam though at any time before judgement he might have released it as both that last booke saith and the two precedent temp Ed. 3. Rich. 2. yea in an action of account after judgement had that the Defendant
this is by vertue of a Statute There is a president in the Booke of Entries of an Action of debt against the Executor of an Heire by which it seemes that a man binding himselfe and his Heires and leaving Assets the Heire taking the profit becomes so a debtor that his Executor shall be charged And in the Register there is a Writ against the Executors of the Guardian of the Spiritualties of the Arch-Bishop of Yorke for the debt of B. who dyed Intestate and whose Goods came to the hands of the said Guardian viz. the Deane of Yorke In allowance whereof there is a note added of the like Writ brought in K. R. 2. his time and that then a president was alledged of such a Writ in King Ed. 2. his time against the Executors of an Ordinary and that they were inforced to answer unto it So is the opinion of Trew in the time of Edward the third But Ald. opposeth him Also the Rationabile parte bonorum by custome in some places is maintaineable for the Wife and Children against the Executor But no action of account lyeth against Executors except for the King More hereof tit wrong Of Covenants charging Executors VVE have already touched upon Covenants in part viz. where they be expressely for payment of money shewing them to be in Law bonds that is Writings Obligatory whereupon an action of debt may be brought as well as an Action of Covenant though the words of the Deed beare the sound and phrase of a Covenant Yet in some Cases no action of debt lyeth upon a Covenant to pay money as if A. Covenant that his Executor shall within a yeare or such a time after his death pay ten pound to B. now for that no action of debt was maintaineable against A. himselfe it lyeth not against his Executor but onely an action of Covenant as was held in the late Queenes time So if the Covenant be conditionall as thus that if C. doe not pay to B. ten pound then A. will pay it and so also perhaps if the Covenant be in the distinctive viz. to doe such an act or to pay ten pound now if the act be not done yet no action of debt lyeth for the money but onely an action of Covenant But now let us come to the Cases of meere Covenants and see which of them will charge an Executor and which not If a Lessee for yeares covenants to repaire the buildings or to pay the Quit-rents issuing out of the Land let there is little doubt but the Executor to whom the terme commeth must as well as his Testator performe that Covenant although he did not covenant for him and his Executors and yet of these cases doubt hath beene and touching the latter viz. of paying Quit-rents divers Justices in Queene Maries time were of opinion that it was a thing so personall that it dyed with the person and did not charge the Executors Nor is there any contrary opinion expressed in the Booke And since that time viz. towards the end of Queene Elizabeths raigne in the Action of Covenant betweene the Deane and Canons of Windsor and Hide touching reparations at the first much opinion was that onely the person Covenanting was tyed to this performance but after it was resolved that that Covenant did runne with the estate and so both Executor and Assignee bound to performance but in that case it was said by Popham Chiefe Justice that if the Covenant had beene to doe a Collatterall act neither the Executor nor the Assignee had beene tyed thereby and therefore where a Lessee for yeares covenants within such a time to build a new house upon the Land and dyes before that time expired I doubt whether the Executor be bound to performe this or not although it doe concerne the Land let so as perhaps the Rent or Fine was the lesse in respect of this charge of new structure or building which is a great reason that the Executor though not named should be tyed to the performance But if the Covenant had been to build a house elsewhere then upon the Land let or to doe any other collaterall thing not pertinent to the Land lâ—t it is cleere the Executors were named to performe it and yet in those cases if there were a breach or non-performance in the Teâ—stators life time as that the time of performance were expired before his death then it is cleere the Executors were bound to yeeld recompence by way of dammages recoverable in an action of Covenant as both Shelley and Fâ—tzherbert agreed and so also did the Lord Popham agree in the said case of Hide as I find in my owne report of that Case though in the Lord Cooke reporting onely the point in question that be not mentioned Now let us consider of the case where there is no expresse Covenant at al so much as for the Lessor himselfe but onely a Covenant implyed or Covenant in Law as we call it As if Lessee for life make a Lease for yeares and dye within the terme so as the Lessee is evicted by him in reversion or remainder In this case it was resolved in the late Queenes time by three Justices viz. Walsh Browne and Dyer that by this Covenant in Law the Executors were not chargeable and in the same case the Lord Dyer sets downe another resolution after to the same effect but Master Serjeant Bendloes reporting this latter case to be of a Lease made by Tenant in tayle viz. before the Statute of 32. Henry 8. or not warrantable by it sets downe the opinion contrarily viz. that the action was mainetaineable against the Executor This may serve for instance the like being in any other case where the Lessor hath not a good and a firme title but perhaps subject to a Condition or other eviction so as the Lessee cannot injoy the Land according to his Lease But this must be so understood that no eviction or breach of Covenant is in the life of the Testator himselfe for if that be there is no question but the Executor stands chargeable and therefore if one make a Lease of Land by Deed wherein he hath nothing this Covenant is perhaps presently broken and though the Lessor dye before an action of Covenant brought it will be mainetaineable against his Executor though no expresse Covenant This is usefull to be knowne though in these dayes there be few Leases so made without expresse Covenant and the Executors also named And where there is a speciall Covenant in expresse words it doth qualifie the Covenant implyed so as although Words of demise and grant tye the Lessor to a generall Warranty of the title against all men yet it being after covenanted that the Lessee shall enjoy against the Lessor and his Heires or against all claiming under him or his Ancestors Now no eviction by or under any other title giveth cause of Action or
the statute marchant was provided consisteth usually more in goods then lands besides the plea of Harrison administrator of the goods of Sidney in barre of Greenes action of debt upon an obligation viz. that the intestate stood bound in a statute staple to I. S. and Greenes reply thereunto that there were Indentures of defeasance no covenant whereof was broken and the resolution of the Judges that the said matter in the replication was good to avoid the defendants plea. All this I say and the resolution of the Judges of the Common Pleas in that case and in the case betweene Pemberton and Barram as also in the Kings Bench by Popham and the rest of the Judges that executors must satisfie judgements before statutes and statutes before obligations had beene idle and savouring of grosse ignorance if no execution at all could be had against the executors of him bound in a statute and then should Greene have demurred upon the plea of Harrison and needed not to have pleaded that other matter but none of the Judges or Serjeants ever conceited any such matter that which there was replyed viz. that the statute was not forfeited is here to bee remembred as good matter both against statutes and recognizances and that whether the recognizance have a defeasance or a condition not broken so that the recognizance is not forfeited In none of these cases is the executor hindred froÌ„ payment of debts by specialty nor can he be justified or excused if by colourt hereof he refuse so to do and indeed else might creditors be exceedingly defrauded by recognizances for the peace and of good behaviour c. and so by statutes for performing covenants touching the enjoying of lands if these should keepe off the payment of debts and yet themselves perhaps never bee forfeited nor the summes become payable Of Debts by specialty NOw come wee to debts due by specialty viz. bond or bill of which nature the greatest number of debts are let us then see what course the executor must or may hold for satisfaction of these admitting that the testator stood not indebted by any record or that no forfeiture is of any such debt or that there be goods in the executors hands above the amount of such debts by record This I say dato then according to the rule proximus quisque sibi the executor may first satisfie himselfe of such debts as the testator by specialty owed him for such debts are not released by the creditors taking upon him to be executor to the debtor though on the other side if the creditor make his debtor executor this is a release of the debt Although it be given out or commonly spoken in the generall that an executor may first pay himselfe yet is it to be understood with this caution or condition viz. that the debt to him be of equall height or dignity with the debts to others according to the rule inaequali jure melior est conditio possidentis for if his testator were indebted to other men by any statute judgement or recognizance and to him whom he maketh executor only by bond or other specialty then may he not first pay himselfe that is by paying of himselfe leave them unpaid whose debts are of a higher nature but if there bee sufficient for satisfaction both to them and himselfe then is it not materiall which be first paid Now touching the debts to other men the executor hath power to give preferment in paiment to whom he will so that if the testator left but an hundred pounds being indebted to A an hundred pounds and to B an hundred pounds by severall obligations the executor hath power to pay B. his whole debt and to leave A altogether unpaid any part of his debt so as he have not commensed any suit before paiment to B. But yet herein this difference is to be taken and observed by executors that if the time of paiment upon the bond of B were not come at the time of the testators death then may not the executors before the money to B become payable pay him and leave A unpaid whose money was presently due Yet if A forbeare to demand or sue for his debt till the debt of B become also payable then is it at the will of the executor to pay whether of them he will so as the other may lose his whole debt if the goods will not suffice to pay both What if A have only by word demanded his debt and not by suit before the debt to B become payable whether doth that hinder that the executor may not now when the money to B is also payable pay him and leave A unpaid And hereunto S. Germ. answereth negatively making this verball demand to be idle and of no value yea he addeth that if A have commenced suit before the debt to B become payable yet if the executor can delay the suit till the debt of B become payable so that A can get no judgement before that time and before B hath commenced suit upon his band then may the executor confesse his action and so pay his debt leaving A unpaid But of this I make some doubt for that I finde in 9 of King Ed. the 4. some admittance that if A having a Tallie patent or other warrant from the King for receipt of money of or from a customer or receiver where others had like warrants before him but A maketh the first demand now must the officer first pay him or else himselfe shall become debtor to him if he first pay others whose demands were after made though they had warrants before A. Likewise there is as to me it seemes some admittance in the same book that the very demand made by a creditor of his debt from an executor who hath then assets in his hands doth intitle the creditor to recover damages against the Executor out of his owne goods which if it so bee then doth even that verbâ—ll demand lay some tye or obligation upon the executor for payment But hereabout I lay downe nothing peremptorily We partly may discerne by the premises how the executor is to guide himselfe in case where there be divers debts by specialty all due and payable at the testators death before any sute commensed for any of them for in that case cleerely the first verball demand gives not any precedence all being due and so standing in equall degree And this is implyed in many Bookes making the commencement of the sute onely that which intitles to priority of payment or at least restraines the election of the executor Yet admit that one creditor first doth beginne suit if others also after sue before hee bee payd or have judgement now cannot the executor pay him first who first commensed sute but hee who first hath judgement must first be satisfyed And the executor may herein yeeld help to one before the other viz. by essoignes emplances or dilatory pleas
to the one and by quick confession of the others action for he is not bound against his will to stand out in sute and expend costs where the debt is cleere nor is this coviâ—e but lawfull discretion which conscience will also approve some good consideration inducing Nay after sute commensed yet untill the executor have notice thereof he may pay any other creditor and then plead that he hath fully administred before notice Nor is the Sherifes returne of summons or distres sufficient cause of notice for the summons might perhaps bee upon his land but if it were to his person it is notice sufficient and then to save himselfe hee must say that he was not summoned till such a day before which hee had fully administred yet doubtlesse the executor may be arrested at the creditors sute in some sort which yet shall bee no sufficient notice of this debt As for the purpose if hee bee sued by Latitat out of the Kings bench this supposing a trespas gives no notice of a debt so also of a Subpaena out of the Exchequer but the originall returnable in the common plees expresseth the debt and so in some sort doe the proces thereupon And therefore it seemes by some bookes that if it bee laid in the same County where the executor dwels he must take notice of it at his owne perill But this I take not to bee Law nor is there any great opinion that way and although to make it more cleere the executor in King Henry the fourth his time estranging himselfe from notice of the sute before payment to others did alledge that the action was layed in a forren Country that is no great proofe that if his abode had beene in the County where the action was brought hee must have taken notice but thus it was cleerer and a little surplusage hurts not Now betweene a debt by obligation and a debt for rent or dammages upon a Covenant broken I conceave no difference nor any priority or precedency but it is as the executors discretion to pay first which he will as if all were by bond So also of rents behinde and unpaid as I conceave but touching them principally intending rents upon leases for yeeres divers considerations are to be had and some distinctions to be made as first betweene rent behind at the time of the testators death of which that before said is to bee understood and that which groweth behind after next betweene sute for the rent by action of debt and by distres and avoury As to the first difference if the rent grew due since the testators death then is it not accounted in Law the testators debt for onely so much is in Law accounted assets to the executor as the proffits of the lease amounted to over and above the rent so as for that rent so behind the executor himselfe stands debtor as hath beene resolved and therefore hee is suable in the debet and detinet whereas for rent behinde in the testators life and all other the debts of his testator hee must bee sued in the detinet onely Hence it must follow as it seemes that an executor sued for debt upon bond or bill cannot except in some speciall cases pleade a payment or recovery of rent growen due since his testators death though of rent behind at the time of his death it bee otherwise And yet heere againe another difference or distinction is to bee taken viz. where the proffits of the lease exceede the rent and where the rent is greater then the yeerely value of the proffits for even there as else where is shewed the executor if hee have assets is tyed to the holding of the lease and payment of the rent and consequently doth so much of that rent as exceedes the yeerely profit stand in equall degree the testators debt with other debts by specialty and yet againe to reconsider this point what if the debts of the testator by specialtie payable presently at his death or before the time that any rent can grow due upon this Lease shall amount to the full value of the testators goods may not then the Executor though hee doe not pay those debts before the rent day for that would make the case cleere waive the terme for if he may then happilie iâ— he doe not so but shall by payment of any of this rent want goods to pay any part of the debts by specialtie it may lie upon himselfe and his owne goods as happening by his owne default But on the one side it may bee said that hee could not waive it so long as hee had assets because thereby hee stood equallie liable to pay that debt being once due as the other debts by specialty On the other side it may be said that though the debts for rent and upon bond shall bee admitted to bee in nature equall yet the case being put of rent not due at the time of the testators death it was not then a debt nor duty whereas a Bond makes a present debt and duty though not presently payable the day of payment being not yet come so as this latter is discharged by a release of debts or duties and so is not the former So to leave that point unresolved let us next see whether in some case though the rent exceede not the yeerely value of the Land yet even that payable after the death of the testator may not stand in most part if not wholie upon the testators score as his debt as well as if it had beene payable before his death Posito then that the whole or halfe yeeres rent is payable at the annunciation of our Lady and that the testator dieth two or three daies or some like short time before that feast now certainlie should the Law bee unreasonable if it should lay this debt upon the executors shoulders in respect of those few winter daies proffits which he tooke But surely since the taking of the proffits induceth the Law to lay the rent upon the Executor as his owne debt therefore as where the Executor had the proffits for the whole yeere or halfe yeere except some few daies incurred in the testators life time those few daies will bee unregarded according to the rule De minimis non curat lex the whole rent shall lie upon the Executor as his owne debt So on the contrary part where the whole yeere or halfe yeers proffit except some few daies incurred after the testators death the rent becomming payable so instantlie after the testators death must in reason lie wholy upon the testators estate as to me it seemes What if to this I adde that the testators cattell wherewith the ground was stocked doe depasture and devoure the proffits all the time after the testators death till the day of payment of the rents Nay if the rent were payable at Mich. and the Anâ—unc and the testator dieth a few daies after Mich. the rent being of or neere the value of
hereof they are to be regardfull not only in respect of escaping damage to their owne estates but more especially in respect of an oath which divers of our bookes mention to be taken by executors And in one of the bookes of relations of cases in the twentieth yeare of Hen 7. his time there is an expression of three things whereto the office of an executor tyeth him 1. To doe truly and thereto are they sworn saith this book 2. To be diligent viz. with sedulity to attend the discharge of the trust 3. To do lawfully nor well can this latter be without knowledge what is lawfull or required by the law Now what is formerly said of the right method and order of paiment of debts discovereth in much part how and by what wayes an executor may waste and mispend his testators goods and consequently incurre a devastation and so make his owne goods liable but of that more fully and particularly by it selfe and herein we will consider of these parts 1. What shall be said to be a wasting or devasting and how many wayes that may be done 2. Who shall by this act be charged to yeeld recompence 3. Who shall take the benefit or advantage of it 4. How farre or in what measure the advantage shall be taken 5. What way or by what meanes it shall be had As to the first this wasting is done divers wayes 1. by the executor his plaine palpable and direct giving selling spending or consuming the testators goods after his owne Will leaving debts unpaid 2 By paying what is not to be paid which yet is to be understood where there are debts payable and unpaid 3. By the way formerly discoursed of viz. the not observing the right method and order of payment 4. By assenting to a legatees having a thing bequeathed debts being unpaid 5. By selling goods of the testators at an under value for be the appraisement what it will and let him sell for what he will he must stand charged to the best and utmost value towards the creditors Yet if upon a judgement against the testator or the executor the Sheriffe sell some of the testators goods at an undervalue this is no vastation of the executor for this difference Hody chiefe Baron makes But since an executor may happily prevent this act of the Sheriff by paying the due sum upon sale of the testators goods at the best value or otherwise he is to be blamed to leave it to the cōscience of the Sheriffe or Undersheriffe rather 6. And lastly this may be done to the executors smart by undue viz. not legall discharging of any debt or duty pertaining to the testator that divers wayes requiring heedfulnesse As if an executor upon a bond of two hundred pounds forfeited for payment of a hundred pounds accept the principall or perhaps also some use costs or damage and give a release or acquitall of the whole forfeited bond or of all actions or upon record acknowledge satisfaction upon judgement had This is a wasting of so much as the penall summe is more then is received and so far his owne goods stand liable to creditors not satisfied and so doubtlesse is it if he doe but give up the bond having no judgement upon it though he neither make release nor acknowledge satisfaction But his verball agreement to require or sue for no more or his giving a note of receipt for so much as he hath received or delivering of the bond into a friends hands or into a Court of equity in way of security to the debtor that he shall not be sued for more is no devastation since still the rest in law remaines due and sueable So this sets no more upon the executors score then he received But let him take heed of releasing except he be sure there be no other debts demandable Nor only is there danger in releasing of debts but of trespasses or other causes of action also As if one take away goods from the testator or from his executor If the executor make him a release this is a devastation and makes his owne goods lyable to the whole value of the goods released as appeares by Russels case where the release of an Infant executor to one who had taken and committed to his use Jewels and goods of the testator being pleaded the release was therefore held void in respect of nonage for that if it should have stood good it had amounted to a Devastavit and made the executors owne goods lyable which his infancy considered had been hard Another way of discharging dangerous to executors is submitting matters of debt or duty or touching goods taken away to arbitrement For if by the award of the arbitrators the debtors or wrong doers bee discharged or acquitted without making full recompence the rest of the value will as to other creditors sit upon the executors skirts because it was their voluntary act thus to submit it to arbitrators Thus may executors fall under prejudice not onely by wilfull wasting or unfaithfull miscarriage wherein they are not to bee pittied but through incogitancy and unskilfulnesse also Nay I may say truly that it is very hard for executors in some cases to walke safely For besides that to finde out all judgements and recognizances by or against their testators is of some difficulty more then for statutes whereof by search in an Office descry may be had yet with this difference that statutes marchant and statutes staple may be and stand effectuall against executors though not inrolled albeit against purchasers of the conusors land they be not of force if neglect be of inrolement within three moneths But where statutes or recognizances lye for performance of covenants upon sale or lease of lands mariage agreements or otherwise how hard is it for executors to know whether any covenant be broken or not how hard to be sure they finde out all bonds bils covenants and articles in writing made and kept by others whereby any money is due and payable before debts by contract or legacies as also all promises or debts by contract payable before legacies For the law hath prescribed no time for their claime and demaund and whether some such thing or meane of publication were not fit to be enacted let the judicious consider To attaine to this knowledge of the testators debts I remember that it is by the Lord Brooke reported that in King Henry the 8 th his time Sir Edmund Knightley being executor to Sir William Spencer made Proclamation in certaine Market Townes that the creditors should come by a certaine day and claime and prove their debts but hee for this was committed to the Fleet and fined For that none may make proclamation saith the book without warrant or authority from the King except Majors and such like Governours of Townes who by priviledge or custome may so doe But the dangers are only where there is not sufficient of the testators goods and chatels to satisfie both
by a wrongfull person and in Suttons case it was expresly held that each Executor should answer for so much as he wasted Now for the fift and last point viz. how and in what manner reliefe shall bee had upon this point of wasting for him to whom it pertaines first this is to bee observed that in case where the verdit passeth directly against the plaintife no devastation can come in question for that no judgement being for the plaintife no writ of execution can issue and therefore if upon the issue of fully administred it shall appeare that there hath beene a devastation which causeth assets to faile then must the Iury finde that the defendant hath assets and not finde a devastation as was resolved in the Kings Bench in the late Queenes time betweene Hankeford and Metford for there the jury finding a devastation viz. a surrender of a lease for yeeres left by the Testator it was held voyd and nugatory and was not regarded by the Court which said that must come in by the Sherifes returne viz. upon the Fieri fac Thus assets being found in the Executors hands judgement is given for the plaintife to recover his debt and to have it levied of these assets nor is this finding of them by a jury against truth though they bee wasted and so not to bee had in kind for the Executor hath them in right since hee hath not rightfully parted from them according to the rule Propossessore habetur qui dolo or injuria desiit possidere As in the case first put this wasting cannot come in question for want of a judgement for the plaintife so also where the judgement it selfe extendeth to the Executors owne goods by reason of some false plea whereof wee shall after consider for since that the consequence and effect of a vastation is but to make the Executors owne proper goods liable to the debt of the Creditor this is altogether needlesse where the judgement it selfe hath layed hold on his goods But now in case where the judgement extends onely to the Testators goods in the Executors hands let us finde the way to releive the Creditor in case the Testators goods bee wasted by misadministring or otherwise for hereabout the right way hath often beene missed and againe easily may bee In the latter end of the late Queenes time this course was taken viz. the Sherife returning generally that the Executor had no goods a surmise was entred that the Executor had converted to his owne use the Testators goods whereupon a writ was awarded to the Sheriffe to enquire thereof by jury or enquest which he did and returned that it was found that the executor had wasted the goods and thereupon a Scire facias was awarded against the executor to shew cause why execution should not be of his owne goods and upon two nihils returned execution was so awarded but a writ of error was hereupon brought And although it were said for defence of that course that it was usuall in the Cōmon Pleas and more favourable than the other course where the Sheriffe only returneth the wasting or is sole judge thereof whereas here it was found by an inquest of Jurors and thereupon a Scire facias awarded yet did the Court resolve the contrary and reverse this execution as erroneous For it was said that upon the Sheriffes returne of nulla bona viz. that there were no goods of the testator to be found the plaintiffe should have a speciall writ of Fieri facias willing the Sheriffe to levie the summe recovered either of the goods of the testator or if it could appeare that the executor had wasted the testators then to levie it of his own goods and this way as was said the executor hath good remedy by action against the Sheriffe if without just cause hee levie it of his goods but the other way viz. when inquest is thereupon taken the remedy failes since neither sheriffe doing according to the inquest can be punished nor the jurors finding falsely are subject to any attaint it being no verdict upon issue joyned but an inquest of office which excludeth also all challenge of jurors And whereas that booke mentions the Sheriffes subjection to action onely in case of his mis-feasance or doing wrong I conceive that hee is likewise suable for omission or nonfeasance in this case viz. for not levying the debt upon the executors owne goods where proofe is made of his wasting And where the booke mentions this Fieri facias to bee in this manner upon the Sheriffes returne in a Scire facias doubtlesse the booke therein is misprinted and should be a Fieri facias for in a Sciri facias the Sheriffe can returne nothing but that he hath warned the party or that he hath nothing where by he may be warned This then is the course there prescribed that first a generall Fieri facias go out and that thereupon the Sheriffe returne generally that the defendant hath no goods of the testators and that thereupon the said speciall writ is to issue yet in the beginning of the late Queens time the verdict passing for the plaintiffe upon the issue of fully administred the Sheriffe was not permitted to make such a generall return of no goods to be found of the testators but was inforced by the Court upon good advisement either to leavy the debt or to returne a Devastavit and so was done at last by the Sheriffes of London much against their minds and therupon went out a writ to leavy the debt of the executors owne goods first into London and after into Devonshire upon a Testatum that the executor had goods there And it was there said that if no goods could bee there found then the plaintiffe might have a Capias to take the executors body in execution or an Elegit for the moiety of his lands But certainly I cannot find except with a difference how this course of inforcing the Sheriffe to doe one of these two can be just as neither could Justice Fulthorp in the time of King Henry the sixth approve it For a Jury of one County may finde assets in another County as was resolved in the time of King Henry the eight which yet was understood of goods moveable and not of lands This then thus being if a Jury of Kent find assets which be in London or Essex how can the Sheriffe of Kent where the action was laid leavy the debt recovered by or out of these goods or since he cannot why should he be compelled to make a false returne of a wasting when the goods remain unspent and unwasted in another County Why rather should hee not bee suffered to returne according to truth that there is nothing within his Countie or Bayliwicke whereof the debt may be levied since even his oath tieth him to make a true returne nor is this contrary to the verdict finding assets generally and this so returned upon
will after found and proved may free himselfe from being an executor of his owne wrong by speciall pleading how or in what right hee intermedled and traversing his administring in other manner and that this traverse neede not nay may not bee was held in the time of King Henry the 6 th and 7 th for that such acts amount not to any administring at all and where no administring at all is confessed such a traverse of not administring in other manner is dissonant and not legall But let us looke backe upon these severall points exempted by the Lord Dyar and wee shall see some cautions necessary touching them and their safe entertaynement first as touching the point of burying the dead it must bee understood to bee with some expence of the deceaseds goods and so is it expressed in the said Booke of Henry the 6 th his time else for a man out of charity to lay out of his owne money not intermedling with the goods of the deceased to bury a friend hath little colour to involve him so doing in an executorship by wrong taking the case then that such person layes out or expends of the deceaseds goods or money upon his funerall heede must bee taken touching the measure and proportion whereabout though I can give no particular and distinct lymit yet doubtles either meere necessiâ—y viz. Church duâ—ies c. or at least decent sutablenesse to his quality must bee the bounds And herein to speake as I thinke this latter must either bee utterly excluded or held within very narrow compasse for what reason that a Knight or man of higher quality leaving though perhaps entayled Lands of good value yet goods not sufficient to pay his debts should have a hundred pounds or more of that which should satisfie Creditors spent in pompous interring of him for his worship and reputation next overseers may onely bee excused for seeking to preserve and keepe the Testators goods not in case they expend or dispose thereof So also for him who is autorized by the Ordinary to collect for if hee sell or dispose of any though goods otherwise subiect to perishing it makes him an executor by wrong as was resolved in the late Queenes time notwithstanding that by the Ordinaries Letters he was expresly directed or warranted so to doe for it was said the ordinary himselfe could not so doe As for him who administred by vertue of a will after disproved or controlled by a latter Hee must not doubtles stand free for the goods before administred but either as rightfull or wrongfull executor stand lyable to the Creditors Nor doth every such intermedling by one out of all these excuses and evasions as would bee an administration make one an executor by wrong If one doe but take an horse of the deceased and tye him in his House or Stable this makes him not an executor saith Paston a justice So of like acts or intermedlings as hee that delivers to the wife of the deceased her apparell at least if it bee no more then is convenient to her degree But if shee take or another deliver more then such to her shee or hee becomes an executor by wrong But now let us come to a difference where there is a rightfull executor and a will by him proved or administration committed for there such light acts or intermedlings shall not make one an executor by wrong as where there is no other of right to be sued As if one take goods wrongfully froÌ„ such a right executor or administrator This though he convert them to his owne use makes him not an executor by wrong but a trespassor to the rightfull executor or administrator who even for these goods once Assets in his hands stands lyable to suits of creditors they being neither lawfully evicted nor rightly administred But in case there had beene no executor at that time or no Will proved nor administration committed then such taking of the deceaseds goods into a strange hand had made an executorship by wrong And thus was the difference lately resolved as is reported by the Lord Cooke in the case betweene Reade and Carter in the Common Place Yet this further difference was there held viz. that although there be an executor or administrator by right yet if a stranger take upon him to receive debts and make acquittances or to pay debts claiming to be an executor he is sueable as an executor by this act and so also in the late Queenes time was held by 6. Just as touching the receipt of debts and making acquittances but the book mentions not whether any other executor then were or not But in the point of bare payment of debts Frowick makes another difference viz. If a stranger do with his own money pay the debts of a friend deceased and not with the debtors This is but an act of charity and makes him not an executor by wrong otherwise if with the debtors money Yet to this another difference must be added viz. that if he thus paying with his owne money have taken into his owne hands goods of the deceased then is his payment presumed as by or out of the value of these goods and so makes him an executor by wrong Contrarily if he have no such goods in his hands And in the point of intermedling with and disposing of the testators goods where another executor is this further difference is to be added or understood viz. That where the goods so taken never came actually to the executors hands but were in a remote place there this taker becomes executor For as it were mischievous to the executor if he should by a possâ—ssion in law cast upon him stand chargeable with these goods in remote places purloyned as assets in his hands so were it as mischievous to creditors if neither executor by right nor this stranger as an executor by wrong should stand lyable to creditors for them It is true that the right executor may sue and recover damages for them and that so recovered shall be Assets but the creditor hath no meanes at the Common law to inforce him to sue and perhaps it may be a cold suit And with these additions I think that late resolved difference may stand firm and sound Yet in former times without such difference the taking only and possession of the goods of the deceased was held to create an executorship by wrong as Belknap said in the time of King Edw. 3. and especially if the act were such as removed the property out of the right executor as Just Fennar in the late Queenes time said Teste meipso How and by what name suit shall be against such and the like TOuching the second point viz. in what manner suit shall be against such First in generall this usurping executor is not in suit to bee distinguished by name from the right executor but to be sued generally by the
having a lease for twenty yeeres did demise the same to I. S. for the whole terme if hee so long should live if hee were alive in time of the former verdit but now is dead the terme continuing this is now assets which before was not whilst it was but a possibility of a terme Other instances might bee given but these may suffice If the Executor pleaded that the Testator stood bound in such a Statute or that there was such a judgment against him of debt to the King beyond the satisfaction whereof the goods would not reach This is in effect a fully administred though speciall and not generall and the Law is alike as I take it in all these cases as to the not making of the Executors goods lyable But in all these causes though the debt shall not bee adjudged upon the Executors owne goods yet the damages shall in default of the Executors goods to satisfie them And in these cases it is not materiall whether the judgement passed upon trial or demurrer Nay if the defendant Executor plead no plea but confesse the action generally or bee condemned by Non sum informatus the judgement is the same viz. to record the debt onely out of the Testators goods and the damages of the Executors goods in default of the Testators what if the Executor defendant confesse that hee have assets to the value of part of the debt not of the whole there for so much as is confessed the plaintife may pray and have judgement presently without dammages and may maintaine for the residue of the debt that the defendant also hath assets for the rest and so goe to triall as appeares both by the printed Booke of entries and another manuscript which I have But what if this triall passe against the plaintife shall hee then have an additionall judgement for dammages in respect of the former I thinke hee shall have costs which commonly runne with or in the name of dammages but without a writ to enquire of dammages none being found by Verdicts the Court doth not usually adiudge dammages yet in the Booke of entries I finde 6 s. 8 d. dammages assessed by the Court upon a confession in a writ of Rationab parte bonorum against Executors and this hath much affinity with the action of debt Yea in the very action of debt where the Iurors for miscariage after their departure from the Barre were fined I find that the plaintife renouncing the assesment of dammages by them made and praying the Court to assesse the same it was done accordingly but this was a speciall case Whereas wee before shewed that an Executor denying his executorship shall if it bee found against him pay the debt of his owne goods for his false plea This thereabout occurreth to bee added viz. that that is onely where the immediate executorship of the defendant is denied For if B. bee made Executor by A. and B. dying makes C. his Executor now if C. bee sued for the debt of A. as Executor of B. Executor of A and hee denyeth that B. was Executor of A. which by consequence is a deniall of his being now Executor of A. yet if this fall out in triall against him hee shall not in his owne goods stand liable to this debt because it is possible that hee might not know to whom his Testator was Executor So if A. made B. C. and D. his executors and E. is sued as executor of D. the surviving executor of A. if E. deny that D. his Testator survived B. and C. by consequence whereof hee denieth the truth viz. that the executorship of A. is devolved to him yet shall not this found against him charge his owne goods for hee might bee ignorant of this point in fact viz. whether B. C. or D. lived longest And heere hee denied not his owne immediate executorship but a mediate or more remote executorship and so I thinke is the Law where C. being sued as executor of B. executor of A. hee pleades that A. by a latter Testament made himselfe executor which is found against him so as heere hee falsely pleaded and pretended himselfe to bee the immediate executor of A. and so denied the mediate executorship viz. of B. to A. and of him to B. yet Quere of this for why should not as well his false making himselfe an executor immediate to the indebted Testator charge his owne goods as well as his false denying of that executorship since both plees tend to the overthrow of the plaintifes action and each equally rested in the defendants knowledge But this difference is betweene them apparant viz. that the deniall of executorship if true is an utter and perpetuall Barre to the plaintife as against him so pleading but the affirming of an immediate executorship where hee was sued as executor mediate doth not so it true but directs the plaintife to a better writ or action viz. against him as immediate executor to the indebted Testator Where we have before touched upon the comming of Assets futurely to executors I think it not amisse to consider a little the forme and frame usuall in pleas of fully administred which thus runne viz. Quod die impetr plene administravit omnia bona catalla quae fuerunt praed S. temp mortis suae nihil hab de bonis c. quae â—uer praed S. temp mortis c. Thus tying his deniall upon the things which were the testators at the time of his death What if then the executor have at the time of this plea pleaded goods with were not the testatorâ— at his death but since accrued as before is shewed or perhaps a lease for yeares sold by the testator upon condition to be void if five hundred pounds not paid at such a day which hapning after the testators death and default made the terme returneth Or if the executor by a writ of error reverse a judgement given against his testator for two hundred pounds and so is restored thereunto May the plaintife now reply generally that he hath assets which were the testators at the time of his death How can the Jury so finde when the truth is not so Surely this case is not common nor can I shew a president of a speciall plea therein But in reason me thinks it should be specially and not generally pleaded and set forth in the replication And in case where one sued as executor denieth that he was ever executor or administred as executor I finde sometimes the replication generall that he did administer without shewing wherein or how and sometimes speciall shewing what thing was administred and where Here note that the executor defendant denying as he must two things viz. 1. That he never was executor 2. That he never administred as executor the plaintife in his replication is tyed to maintaine but the one of them as the truth of the case is that is if in truth the defendant were
made executor but never did administer now it must be replyed that he was made executor at such a place without speaking any thing of his administring On the other side if he did administer but were not made executor then only the administring is to be replyed but if it shall be found that the defendant had administration to him commited and so administred by vertue thereof then is the verdict to passe for the defendant for this is no administring as executor and upon a generall deniall thereof this may be given in evidence as the Lo. Dyar reports to have beene resolved But if the plaintife do in his replication maintaine both the points shall this make his plea double Me thinks it should yet I finde it so replyed and no exception taken for the doublenesse Tr. 17. H. 8. Rot. 28. A sole woman being executor maketh a deed of gift of the testators goods in trust but continueth possession of them and marrieth J. S. who also hath possession of the goods and in an action of debt by a creditor fully administred is pleaded now upon evidence the verdict shall passe for the plaintife for this alienation being fraudulent was void as to all creditors and so as to the plaintife the goods continued the testators and so assets in the defendâ—nts hands as was held in the Kings Bench. If fully administred be pleaded where the defendant hath assets for part but not sufficient for all and so it is found yet shall not judgement be given for the whole but for part presently with a further award that when more shall come to the executors hand the plaintife shall then have further judgement for the rest so as that false plea doth him no prejudice but makes him in as good state the charges of triall excepted as if he had confessed himselfe to have part And I think the plaintife upon that confession of part may pray the like judgement without maintaining that the defendant hath sufficient for the rest for if that be not true why should he be put to the charge of a triall by Jury yea Sir Edw Cooke at the Barre Tr. 36. Eliz. said that where fully administred is pleaded the plaintife is not tied to maintaine the contrary but may presently pray and have judgement to recover it when assets shall futurely come to the defendants hands which was denied by some but truly me thinks the law should be as he said as well as in the former case where for the part which the defendant had not assets to pay it so was done upon verdict so finding But there as I conceive it was not a present judgement but an award that he should have judgement futurely so as after wheÌ„ assets come to the defendants hands the plaintife must have a Seire faeias against the defendant to shew cause not why he should not have execution but why he should not have judgement as I take it yea where it is found for the defendant that he hath fully administred yet was is held by all the Justices 33 Hen. 6. 23 24. and by â—risoâ— 34 Hen. 6. 24. that when assets after come to his hands the plaintife shall have a Scire sacias to have satisfaction out of them but there Markham Yelverton and Forteseu were of contrary opinion and so was the whole Court 4 Hen. 6. fo 4 And it stands with great reason that where upon a verdict fully found against the plaintife judgment is given quod nihil capiat per breve there he cannot have any writ to execute the judgement for him but is put to a new action of debt yet where it is found that the defendant hath assets for part of the debt but not sufficient for the whole there it is very congruous that the plaintife have presently judgement for part and after when more commeth then by Scire facias against the defendant obtaine judgement and execution for the rest for here both verdict and judgement were for the plaintife against the defendant whose plea that he had no goods was false and so found by the jury And this difference was strongly avowed by Serjeant Hanham Mich. 33. 34. Eliz. and after approved by Fenner Iust 36. Eliz. none contradicting it yet a book was cited that the plaintife recovering so much as was found in the executors hands should be amersed for the residue which Popham Chiefe Iustice denied to be law Chap. XVI Where judgement shall be against the Executors owne goods though no plea of the defendant nor vastation do so occasion and of the severall manners of judgement in severall cases HOw by wasting called by us commonly a Devastavit an executor may draw down the execution upon his owne goods hath formerly beene handled and discoursed of as also what kinde of pleas doe make the executors owne goods liable to the debt and what not Now let us see where without mis-administring or mis-pleading yet the nature of the action shall lay the whole debt or thing recovered upon the executors owne goods And this we shall finde in some few cases 1. Where an executor is sued for rent behinde after his testators death upon a lease for yeares made to the testator and by him left to his executor Here it shall be adjudged and levied upon his owne goods for that so much of the profits as the rent amounted to shall be accounted as his owne goods and not his testators therefore is he to be sued as well in the debet as the detinâ—t where in other cases he is not but in the detinet only being sued as executor So if any thing delivered to or detained by his testator come to his hands and he still detaines the same after the demand and be thereupon sued in an action of detinue for this is his owne act nor in this case need he to be named as executor for he shall not answer damages for his testators detaining So if he assume to pay a debt of his testators having assets and be sued upon this Assumpt the which debt is to be recovered in damages and that upon or out of the executors owne goods yet is this action and the assumption which is the ground thereof founded in the executorship and his having assets for if either he had not beene executor or if he had not assets at the time of the promise it had beene nudum pactum and would not have bound him nor given good cause of suit Nay to go further in the case of assumption by the testator and suit against the executor thereupon we finde the judgement in M. Plowdens Commentary given against the executor generally as if he had not beene an executor not fixing it upon the testators goods yet there the very debt it selfe is included in the damages But contrarily was it after in the seventh yeare of the late King viz. judgement given that as well the damages as the costs should be levied
of the testators goods if so much in value of them were in the defendants hands and if not then the costs only of the goods of the executor And this surely is the righter and more just way for there is no reason that upon on a promise more then upon a bond the law should cast the whole debt upon the back and state of the executor But perhaps the two judgements may be reconciled thus the later was given upon a verdict non assumpsit being the issue and there the Iury assessed damages in certain viz. two hundred fifty three pounds with the costs So as here the judgement was compleate and full viz. to recover the said summe but in the other case the judgement was had upon a demurrer so as the damages not being knowne it was generally that the plaintife should recover his damages against the defendant Sed quia nescitur quae damna c. because it appeareth not to the Court what the damages were therefore a writ was awarded to inquire of damages upon the return whereof executed the judgement was fully and compleatly to be given of a summe in certain which second judgement it appeares not by the book in what manner it was entred and therefore might perhaps bee then agreeable with the other And that the said first judgement before damages inquired of is not a plenary full judgement but an award of judgement hath beene divers times resolved and that therefore any defect and insufficiency in the declaration may be shewed time enough after the first and before the second judgement Yea if the plaintife dye before the second judgement though after the first the action falleth to the ground So if the defendant dye otherwise of death after full judgement But this notwithstanding and howsoever it there were done upon the second judgment me thinks it were righter and fitter that the first judgement should expresse that the damages should be had and levied out of the testators goods for whom and in whose right the executor is sued Another case there is wherein the judgment must be as it seemes against the executors own goods viz. in an action of covenant for a breach of covenāt since the testators death for so was it held both by all the Judges of Common Pleas except the L. Dyar and by the pregnotaries in the late Queenes time where the case was of an house upon the lease negligently burned in the executors time for which damages only were to be recovered And sometimes where the executor himselfe is so to beare the burthen I finde the judgement entred that the summe recovered shall be levied of the lands and goods of the executor Chap. XVII Of women covert Executors THere being two kinde of persons who have some disability upon them viz. Femme coverts or married women and infants touching whom we find in many places question and disceptation in our bookes We will consider of them by themselves or apart from others yet not joyning them together neither but each by himselfe separately First therefore of Femme coverts touching whom we will consider these three things First whether they may make Wills and executors with or without their husbands assent and how where and in what cases Secondly whether they may be made executors without their husbands assent or how their husbands may hinder it Thirdly what acts in execution of the executorship they may doe without their husbands or their husbands without them A woman married or femme covert wee know is Sub potestate viri cui in vita contradicere non potest as saith the writ given by the Law to the wife for recovery of her land after her husbands death being aliened by him Therefore it is that Judges when a woman is to acknowledge a fine of any land doe examine her apart from her husband to know whether she bee willing or come to doe it by the compulsion of her husband It is therefore hard for her to have freedome of will and consequently freedome to make a will Besides all her moveables or goods personall which shee had at the time of her marriage otherwise than as executrix or administratrix are by the Law totally devested out of her and setled in the husband as fully ipso facto upon the very marriage as any other that were his owne before Of these therefore she can make no disposition no more than of other her husbands goods But in case shee doe by will bequeath them although the will and gift be void yet if the husband as the case was in the time of Edw. the second do after his wives death consent to this her will gift by delivering of the goods bequeathed after her death or assenting that the legatee take them by vertue of such will and gift this amounteth to a new gift by the husband If a woman have a lease an estate by extent a wardship the next avoydance of a Church or other chattell reall these are not devested out of her into her husband by marriage but in case she over-live him they continue to her as before no alienation or alteration having been made by the husband who had power to dispose of them by gift in his life-time though not by his will yet such a woman in her husbands life-time could not of or for these things without her husbands assent make an executor or will but she dying before him they would by the operation of law accrue to him And here then observe a case though not frequent yet full of mischief when it happens Suppose that a woman indebted a thousand pounds and having leases and moveable goods to the value of three thousand or foure thousand pounds marrieth with I. S. and then dyeth before the debt bee recovered against her in this case the husband shall have and goe away with all this value of his wife and is not in law lyable to pay one penny of her debts because hee is neither her executor nor administrator What the Chancery could doe or rather what the Lord Chancellor or Lord Keeper would doe in this case I will not take upō me to say or determine Another sort or kind of goods or rather interests a woman may have viz. debts or things in action which as the former are not devested out of her by marriage into her husband nor yet can shee thereof make an executor without her husbands assent although they be one degree farther from the husband than the said chatels realls for that though th◠husband doe overlive the wife he shall not be intitled to them as to the former But if his wife make him executor as she may or if after her death hee take administration of her goods then as he is thereby intitled to them so is he lyable also to pay her debts out of the same when he shall have received them Lastly Dato that a woman covert
is executrix to some other person and in that right hath goods moveable these are not devested out of her because she hath them not meerely to her owne use but as representing the person of another But whether then may she without her husbands licence or assent in respect of her being an executor and for continuation of this executorship make executors and consequently a will or not Hereabout hath been much diversity of opinion Some books generally speake that the wife may make an executor but speak nothing of the husbands assent whether necessary or not Else-where we find it mentioned that if the husband after the wives death countermand some bookes false printed say command the proving of his wives will then it loseth all force or becommeth void and of no value but in this case is no mention in what state this wife stood viz. whether she were executor or not no nor so much as whether she had any thing in action or chatell reall or not so as nothing in particularity can be grounded upon that case But there are expresse opinions that the husbands assent is absolutely necessary even in this case so as without it the wives making an executor shall be meerly void and consequently he to whom she was executor shall now by her death bee dead intestate And of this opinion was Babington chiefe Justice in the beginning of Henry the sixt his time Yet contrary hereunto was the opinion of Fineux chiefe Justice in the time of King Henry the seventh viz. that where the wife is an executor shee may also make a will and an executor without any consent or assent of her husband And to this opinion doth Master Perkins after consideration of the bookes on both sides incline But some will say that since all this in the late Queenes time this hath been contrarily resolved viz. in the case between Andrew Ognell plaintiffe and Vnderhill and Apleby defendants in the end of which Case it is in expresse termes said to have beene then resolved that a femme Covert or married woman could not make an Executor without the consent of her Husband To this I answer that this Case is to bee construed with relation Ad materiam subjectam viz. to the matter and point in question and under consideration which was that state of a woman whereof wee have before spoken viz. one having things in action debts or duties to her belonging aâ— therein particular it was arrearages of rent due to the woman before marriage As for the point of a woman executor to another person it was never in that Case under disceptation no nor once mentioned in the debate or arguments thereupon Now considering the very forme and phrase of judgements at the common Law which are thus viz. Ideo consideratum est per Curiam c. not Adjudicatum est that is it is considered by the Court not in expresse termes that it is adjudged This I say well observed as to mee it seemes very remarkable gives us to know that no more is adjudged then is considered of the judgement being contayned and clasped up in the word Consideratum est VVherefore since in Ognells Case the point of a woman coverts ability in Case where shee is an Executor To make a will and Executor hath not beene considered of the eyes tongues nor thoughts of the Judges being not once set upon it It cannot bee that that point is there resolved or adjudged Besides even in a few words expressing as to mee it seemes the reason of that resolution it appeares not to have beene the intent of the Judges that the same should reach or extend to this Case of a woman covert executor for it is added as the reason of the judgement in my conceiving that the administration of the wives goods doth of right belong to the husband which amounts to this in my understanding viz. that where the wives making of a will and consequently of an Executor may bee prejudiciall to her husband and prevent him of some benefit or advantage or tend to his losse and disadvantage there it shall not bee avaylable or effectuall without his assent and therefore not in the Case of her who having debts or duties to her due would by making another to bee her Executor exclude or preclude her husband from that benefit which to him should pertaine as administrator of her goods Now as for the goods debts or credit to her as executor to some other pertayning no benefit could redound to the husband by having such administration of his wives goods for those should goe and bee to the next of kinne of the wives Testator taking administration De bonis non administratis of him if â—hee have no Executor therefore her making an Executor as touching these brings no hurt nor prejudice to her husband and so is out of the reason of Ognells Case Since then it is so and since the Law favoureth wills and it was by implication part of his will who made her Executor that shee should have power to continue his Executorship by making another to succeed therein after her decease for performance of his will why should the Law give to the Husband who can receave no prejudice thereby power to give impediment thereunto for Frustra est inutilis potentia even reason it selfe frames and awards against him in this Case a Quare impedit or rather a Non impediet as to mee it seemes Wherefore to conclude I take it that the opinion of Fineux is good Law in that point of a fâ—me covert Executor though not in the other point where shee onely hath debts or things in action to her selfe due for therein the said resolution in Ognells Case grounded upon good reason gives mee satisfaction to differ from Fineux who making no difference betweene the cases held the Husbands assent needles in both Posito then that the wife of I. S. having debts due to her selfe and being also Executrix to I. D. makes without her husbands assent I. N. her executor and dyeth what shall wee now say shall wee say that as touching the goods and credits or things in action to her as executrix of I. D. pertaining this will stands good and I. N. as her Executor may prove it contrary to her husâ—ands will and that as to the credits to her selfe in her owne right pertayning the will is voyd voyd thereof her husband may take administration Shall she dye both testate and intestate with a will and without a will shall shee have both an executor and administrator why not to severall purposes aswell as where an executor is made onely for one particular thing or one place the Testator may elsewhere dye intestate and so where the executorship is divided as before is shewed and one to whom part is committed will prove the will but the other to whom other part of the executorship is committed will not take it upon him here
that it is done to the use or profit of the infant Executor then no sale of lease or goods or assent to legacy by such administrator will bind or prejudice the infant Executor But otherwise perhaps if the administration during the minority bee committed generally And if the Testator himselfe making an infant Executor doe also appoint another to bee his Executor during his nonage expressing it to bee onely for the benefit and behoofe of the infant executor I doubt whether this temporary executor stand any whit restrayned froÌ„ what pertaines to the power of an absolute executor for there may be perhaps difference between him to whom the owner of the goods commits the government of them though but for a time and in speciall manner and an administrator so specially made by the ordinary another being presently by the will of the owner or Testator to have the administration in whom for a time legall defect is found But now let us passe over this age of 17. and consider of the infant betweene that time of his being admitted to take upon him the executorship and his accomplishment of his full age of 21. First then suppose that hee doth release a debt due to his Testator whether shall this bee good to bind him and to discharge the debtor aswell as if the executor had bin of full age hee now having proved the will and being by the Law spirituall approved an able executor And this point comming in question in Russells Case in the late Queenes time consideration was had both of divers good reasons for enabling of this release as that an executor represents the person of his Testator and in his right and power doth these acts and not in his owne and therefore his infancy which is a state or condition of his owne naturall person shall no more disable him then it doth the King a Mayor or other head of a Corporation Also divers Bookes were found to runne that way as well in the case of an infant as of a Femme Covert But upon great deliberation in the Kings Bench and upon conference had with the Lord Anderson Manwood and other justices it was resolved and adjudged that the release of an infant executor without payment of the debt or duty would not bind or barre him first for that if it should it would be a wasting or devasting of the goods of his Testator and so would charge his owne goods Secondly It would bee a wrong which an infant could not doe by his release Thirdly It was no pursuit nor performance of the office or duty of an executor but the contrary And upon this judgement a writ of error was brought in the Exchequer Chamber where it was agreed by all that the release was not effectuall nor binding so as this point now had the resolution of all the Judges of England But it was agreed that if payment or satisfaction had beene made then the infant executor might have made a good acquittance and discharge indeed payment it self if proved brings discharge enough except in the case of a single Bill Note that the principall case adjudged was not of a release of any debt or duty by specialty but of trespasse in conversion of goods found or taken in the Testators life time But Poâ—ito that this infant had assented to a legacy whether will this binde him or not for in the said Case of Russell it is said that all things which an infant doth according to the office and duty of an Executor will stand firme now it is part of his office to pay and execute Legacies Yet since this act amounts to a vastation or wasting of the Testators goods aswell as the other in case there remaine not goods sufficient for payment of the debts and consequently here aswell as in the other case the infants owne goods would become lyable to his Testator debts I doubt and incline that it is not nor can stand effectuall for except in the other wee admit a want or possibility of want of assets or goods the release could neither hurt the infant himselfe nor doe wrong to any other and that admitted this case is of like prejudice yet if this asset should bee voyd so also would bee his payment of Legacies and how then were hee an able Executor at the age of 17. yes to sue and to bee sued for debts and Legacies and if upon suit it cannot bee shewed that debts will take up all or disable the payment then happily hee may bee forced to pay Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse or conditionally viz. if there bee besides goods sufficient c. or that else the nonaged Executor may have an action of accompt for the money by him payed to the Legatee and also avoyd his assent where that only needfull But doubtlesse neither the assent of such Executor before his age of 17. nor any payment of a debt to him could bee good although such acts to or by another Executor before the proving of the will would stand firme and good for this infant wants not onely proving but also ability to prove his Testators will yea the will stands suspended and the Testator as it were intestate whilst the administration stands in force so as during that time nothing can bee done by any as executor and therefore there is great difference betweene the cases What if payment of a Legacy bee made to an infant can hee make a sufficient acquittance This I confesse is besides the point in hand yet because it concerns infants and Executors though not infant Executors it is not amisse here to cast some thoughts and words upon the point for that it many times perplexeth both Executors and Legatees First therefore in case the Executor bee of the yeares of discretion viz. 14. I hold it cleare that any payment to him made will stand good for that the Law at that age holds him able to governe and manage his owne Lands held in socage and consequently to receave the rents thereof wherefore whether hee who makes such payment have any acquittance or not if hee have proofe of the payment hee is well enough acquitted from any second payment and if without payment hee get an acquittance it will not suffice the infancy of him who makes the acquittance considered Besides if the acquittance bee as most usually they are but signed onely with the name of the maker and not sealed it is onely an evidence or proofe of payment and no pledable acquittance because no deed so as it nothing differs from proofe by witnesses save that it is not mortall as they But now if the infant bee under the yeeres of discretion what shall wee say to a payment to him specially if hee bee but three or foure yeares old or thereabout heere I thinke caution is to bee used by the executor generally and the surest way is if hee feare to
another point which made an end of the case all agreed Yet the better opinion was as I finde in my report that a lease would passe by such words in a will though not in a deed or grant by word otherwise made for that legacies are demandable in the Spirituall Court where bona catalla are taken for all one See also the state of Marlbr giving an action to the successor ad repetenda bona predecess Yet an eject custod hath been maintained thereupon so also upon the stat for executors de bonis asportatis in vita testator hath it beene resolved and where administration is granted it is only omnium bonorum without speaking of chattels yet hath the administrator interest in leases as well as moveables On the other side the stat de prerog reg mentioning only forfeiture de catallis is cleerely extended to moveables so also in the writ of assize de catallis quae in eo capta fuerint and in the writ of execution upon a stat there is only the word catalla and not bona and in the case reported by Kelway temp Henry the 7 th it seems bona catalla were taken for synonyma or all one It doth not appeare that these stat and writs were alleadged or considered of temp Ed. 6. but in Portmans case the most of them were If one will that his wife or any other shall have or hold or enjoy the moiety of his lease with his executor This implyeth not that the executor have the other moity as a legacy also but otherwise as the law casts it upon him no more then where the moiety of fee-simple land is devised to the younger sonne this shall not make the elder sonne to have the other moiety otherwise then by discent as betweene Low and Charter was conceived But there being a Proviso in the wives bequest that if she married from the house then c. Popham cap. Justice held that if she married at all this was a marrying from the house for she was no longer widdow of that house though she married with one of that kindred and who had no other house but would dwell in the bequeathed CAP. XX. Of the Executor of an Executor I Should bee taxed of omission if I should not shew whether the things fore-spoken of Executors immediate extend also to the mediate or more remote Executors Assuredly were I not by the books otherwise informed I should thinke it somewhat strange that the mediate Executor in the fourth fift or further degree should not by the rules of the common Law stand in like plight Executor to the first Testator as the first and immediate Executor aswellas the heire and assignee in the third or thirteenth degree is capable of all advantages in like sort as the first and immediate heire and assignee And indeed wee finde both in the time of Edward the 2. and Edward the 3. Execution sued out upon a judgement and Statute by an Executor of an Executor and why hee might not aswell maintaine an action of debt c. I see not But I must confesse I finde both books to the contrary before any Statute made in the point and after an act of parliament to enable them to bring actions and to make them subject to actions yet the Statute speakes nothing of conferring upon them the Testators goods Now if they had title to them before that Statute and without the helpe of that Statute it is strange if they should not bee suable for debts But since that Statute and at this day where by a will a speciall trust is recommended to an Executor as to sâ—ll land c. This not performed in his life time shall not be performable by his Executor contrariwise of an interest as to take the profits of lands for certaine yeeres towards payment of debts and legacies and where the stat temp H. 8. gives remedy to Executors for recovery of rents of inheritance behind in the Testators life I doubt not but executors of executors are within the equity as well as within the Stat. 9. Ed. 3. cap. 3. that the executor who appeares at the grand distres shall answer alone Yet the statute Westm 2. cap. 23. for executors was taken not to extend to executors of executors Quod non est lex So as now in all cases except of speciall trust or authority without the office of executorship The executor of an executor how farre soever in degree remote stands as to the points both of being having and doing in the same state and plight as the first and immediate executor CAP. XXI Touching Administrators OF these also as standing in much affinity with executors it may bee by some expected that I should have treated But first my excuse is that these of executors onely having growne to so great a bulke above expectation I was unwilling to inlarge it further Secondly that which in the points of having and doing is before set forth and shewed touching executors may bee applied to and understood of administrator sthough not what is spoken of being and unbeing or revocation of executorships and other circumstantiall points Lastly I may perhaps if these finde good acceptance ad ere long that which appertaineth to Administrators distinguished from Executors or wherein they stand in different state CAP. XXII Considerations in conscience touching payment of Debts Legacies and the preferring or respect of persons TO the advertisement what course executors are to hold in their payments I thought good to adde this in foro conscientiae That when as it shall stand in the executors will and election to pay whom he will and as he will in respect of equality in the dignity and degree of the debts all being for the purpose by specialty and none of record and yet he hath not wherewith to pay or satisfie all Here he may have three wayes or courses in his eye First where there is equality in the honesty and conscience of the debts there except in the ability of the paties to beare losse the disproportion may otherwise occasion me thinks it should be most honest and just to pay every one proportionably and to let the losse of every one to be equall and the justnesse of this is taught by the law which gives the audita querela for equall contribution in bearing of losse by them who stand in equall degree so of legacies The poverty and inability of some and the plenty of others may in foro conscientiae justifie the paying more to one and suffering him to lose lesse if any thing then another For as the widowes mite was a greater gift so a greater losse then more out of abundance Where charity findes or may finde place or neernesse to place of giving it may find greater motives of preserving from losse So of legacies The nature of the debts and so sometime of legacies may be so different as
29. Eli. Inter Brooker Carter in Ba. com 9. Ed. 4. 33. The Booke calls him Cardinall of Canterbury 9. Ed. 4. 47. Selling Land as Executor is Admin Dyeâ— in Case of Greisbrooke Foxe Plow com 280. b. Pas 7. Eliz 36. Hâ—n 6. f. 7. 8. Micâ— 27. 28. Eliz 〈◊〉 Case in com 〈…〉 A. being Executor did adminâ—ster and yet would not prove the Will B. tooke Administration and being sued for debt did pleade the matter supra and held a good plea and was found for him before â—ust 〈◊〉 ad Oxâ—n in aestat 1. Carâ—l reg 36. Hen. 6. 7. 20 〈◊〉 4 17. and 21. â— 4 5. 21. Ed. 4. 5. 21. H. 6. 19. 20. 33. H. 6. 31. 8. 1. Eliz. Dy. 166. 13. Ed. 3. Exâ—c 91. 3. 4. Ma. Dy. 135 26. H. 8. 7. 8. 20. H. 7. Kelw. 63. 21. Ed. 4. 5. 20. H 7 f. 5. a. 9. Ed. 4. 12. 13. 33. H. 6. 31. 4. Cooke lib 5. f. 2â— Cont. 18. E. 2. Bre. 8â—7 22. Ed. 3. 19. 15. Ed. 3. Exec. 8. 41. Ed. 3. fol. 〈◊〉 21. Ed. 4. fâ—l 24. 42. Eliz. Co. 9. f. 36 37. 4 5. 〈◊〉 Ma. Dy. â— 69◠〈…〉 2â— â— â— 4. 23. 24. 33. Hen 6. 38. a. 〈◊〉 9. 37. 6. 32. Hen. â— â—25 27. Hen. 8. 11. 〈◊〉 curâ—am 9. Ed. 4. 33. Co. 9. fol. 36. 2. R. 3. Fitzh 4. Co. lib. 9. fol. 43. 11. H. 7. 12. Flow. Coâ— 279. 1 Cor. 4. 2. Acts 20. 27. Vide â—ol proxim If Bona Notabâ—â—â— both in Canterb. and Yorke Canon 92 93. â—1 Eliz. Goods considerable or 〈…〉 Hil. 37. Eliz. M. Comâ— Da. Vide 13. 14. Eliz. Dy. 305. 22. Eliz. 9. Ed. 4. 47 22. Ed. 4. 50. 22. H. 6. 52. Plow Com. 282. 44. Ed. 3. 32. 19. Ass p. 2. Plow Com. 281. a. 283. 18. H. 6. 22. 2. 9. E. 4. 33. 47. Not to make good a Release made before Co. lib. 5. 28. 36. H. 6. 8. 2. Ma. Dy. 110. See also 31. E. 3. cap. 11. An Administr shall account as an Executor Fitzh Ex. 91. and 837. viz. 18. E. 2. tit Briefe 48. E. 3. 14. 15. Of a duty resting in account it is said the Legatee shall have remedy by account in the Spirit Court 81. Ed. 4. f. 3. Moyle 4. H. 7. 15. per Wood. 9. Ed. 4. 47. Dost Stu. 78. b 21. Ed 4. 22. Plow Com. 544. 4. H. 7. 15. Kelw. râ—p 64. a. Temp. E. 1. Assise 〈…〉 37. Ass p. 〈◊〉 4. E. 3. Ass 166. Brâ— Chaâ— 15. â—9 E. 3. 37. So Manwood if granted for life it is but a chattell Plow coâ— 524. 〈…〉 88. Reg. orig f. 102. There is mentione that the prisoner was to have a 190. l. for his ransome Bro. no. ca. 295. tis Property 38 1. H. 6. cap 5. 10. E. 4. 14. 15. Come of wilde ones 22. H. 7. Relw. rep f. 88. 118. co lib. 11. fo 50. 18. H. 8. 2. 10 E. 4. 14. 15. 18. E. 4. 8. So of young Hawkes in the nest It is felony to steale these Ergo. they be goods So an Hunters horne a Falkoners lewer Hares Deere Fesants Partridges wilde Duckes c. are good â—eate Fo. 142. Hen. 8. fol. 3. Rootes of Carrots Parsnips Land sold wherâ—n is ripe Corne For he was Tenant for life in effect The Wife also shall have convenient apparell 33. H. 6. 31. 2. Eliz. Dy. Co lib. 11. f 48. Of Houses or things about the House 42. E. 3. 6. â—1 H. 7. f. 26. 42. F. 3. f 6. H. 37. Fliz. Austins case 〈◊〉 lib. 4. f. 63. 64 Things in Gaâ—dens 〈…〉 2. 36. H. 6. 2â— 18. E. 3. 4. â— H. 7. 15. Quae. If sole use that way make a difference or not See Stat. 〈◊〉 H. 8. cap. 17. Remedy for Rents of Inheritance or for life A Church of the Testators Inher become voyd in his life comes to the Executor as a thing in action but is not Assets for not vendible 11. H. 4. 32. 45. E. 3. 3. 〈◊〉 na br 59. 4. E. â— c. 7. And the like given to Executors of Executors pâ—r 〈◊〉 25. E. 3. c. 5. 17. E. 3. Fit 106 cap. 21. meant 〈…〉 21. H. 6. 1. but 〈…〉 contra 21. H 8. cap 19. 4 E. 3. The B. of Coâ—â—nt â— and Safes case M. 32. 33 Eliz. in com ba. So of Ravishment Dl. gard 7. H. 4. â— 7. H. 4. 6. Erect 〈◊〉 Tild Do â—lauso fracto meerely it lyeth not 11. H. â— 3. This Tâ—riaÌ„ Iust did very judiciâ—â—â—sly urge in Sâ—les case supra At least me thinkes Action upon the case here and before should be maintaineable 3. H. 6. 3. Litleton fo 42. a. So held in Sales case of dammages in Qua. impe recovered conte of the presentment Releasing 13. Ed. 3. 〈◊〉 9â— Error 1â— H. 4. 65. 46. E. 23. Yet upon a verdict in Qua. imp the Wife not the Executor of Husband did seise 9. H. 6. c. 4. Or if a strange usurpe in his life and he dying his Executor recovers in a Qua. imp as by Sale was done infra Mich. 32. and 33. Eliz. So held in Sales Case in com ba. Vende◠〈◊〉 pâ—test emerat ipse prius 22. H. 8. 〈◊〉 Villenage 46. If he dye how shall this be Assets in the heire 3. H. 63. and so 2. Hen. 4. 21. If by Feoffment per Markam cap. Iâ—st contr Rickâ—ill See 9. El. Dy. 264 9. H. D. 264. 14. H. D. 31â— Note Diff. â—1 Hen. 7. Plowd Com. 11. H. 6 35. per Babington 24. E. 3. f. 35. 32. H. 6. 34. â—itl tit villenage 41. 42. 10. E. 4. fo 1. Yet 39 H. 6. f. 15 A release of all actions by an Executor extincts actions as Executor But Frowicke iâ— against it in 20. H. 7. Kâ—l 64. See these so resolved in Plow com 525. intâ— Râ—ansby Grantham P. 20. Eliz. This may be in his name onely out of whose possession the goods were taken Co. lib. 5. fo 32. 34. H. 6. 43. Co. lib. 9. 88. b. See this also Ploâ— com 520. a. 21. Hen. 6. 30. If other goods taken among them he is excused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded 43. E. 3. 24. Brâ— 145. Makes a quae if it be locked Plow com 280. 43 Ed 3. 2. 10. Ed. 4 5. 6. Of the Deed execution first 12. H. 4. 7. Hen. 4. f. 31. See Bro. Exe. â— 24 Co. l. 3. f. 90. 91. To like purpose see more Litl f. 77. b. 2. Eliz. Dy. 281. Plow com 291. 21. Hen. 7. 4. A Are as one person therefore cannot plead severall pleas 〈◊〉 abatement 3â— H. 6. 17. 9 H. 6. f. 44. 38. E. 3. 9 Bro. Ex. 13. Brâ— Ex. 20 21. Therefore one Executor sued iâ— he plead that there is another Executor not sued must plead that he did administer 9. H. 6. 44. Bro. 13. 33. H. 6. 38. â— â— 20. 32. E. 3. quid jur 〈◊〉 5. â—3 H. 4 Aid â—86 A 9. Ed 3. cap. 3. A B But not if he
debts and legacies For where there is so the executor is not in any such hazard as aforesaid This descry of danger may breed caution and Qui timent cavent vitant As to the second wee shall have in consideration two sorts of persons videliâ—et 1. His executors there being many times divers executors and the waste or devastation done but by one Next his owne heires executors and administrators videlicet whether he dying this act shall fixe upon them like charge and burthen for satisfaction as upon himselfe should have lyen in case he had lived Touching his companions though altogether make but one Executor yet the misdoing of one shall not charge the rest nor make their goods liable to recompence as both appeares by the Booke of entries and was also held in the time of Henry the seventh Anno 12. of his raigne Yea of the same opinion were the judges twice in the late Queenes time viz. first in a case betweene Walter and Sutton in the common place and shortly after in the Kings Bench in a case between Hankeford and Metford though these two cases bee not reported in Print And surely this stands with rules of reason or justice that each should beare his owne burthen If it were otherwise many would decline abandon executorships as very dangerous to the most honest and faithfull in case they were subject to wracking by the miscariage of their Colleagues As for the Executors or Administrators of the wasting Executor dying before hee have born the burthen of his mis-doing I have found contrary opinions even in the late Queenes time For first in the Exchequor it was conceaved to bee as a trespas dying with the person as comming within the rule Actio personalis moritur cum persona But in the said case of Walter and Sutton the court of common plees was of contrary opinion viz. that this was not escaped by the death of this misdoer but the law would pursue his Executors or administrators and lay upon their backes the burthen of recompence or satisfaction for that the testator or intestate doing this wrong had made himselfe to bee debtor in the first testators stead and therefore they who represent his person must with his goods make amends and supply And this later opinion was something in time after the former Also betweene these two times was there an opinion in the said Court of common plees agreâ—ing in part with this latter For there a judgement being had against an Executor and the Shriefe upon the Fieri facias returning that there were no goods of the Testator in the Executors hands and then this Executor dying A Scire fac upon a suggestion of devastation by the said Executor deceased was awarded against his Executor and that upon good debate and shew of a President left and reported by M. Iâ—â—our in King Henry the eight his time And it was then said to have beene cleare that if a devastation had beene returned in the life time of the said Wastfull Executor his Executor then should have beene charged All the doubt was for that heere that was not done in his life time yet at last affirmatively as above is shewed the resolution was Touching the third point viz. to whom the advantage of wasting shall accrue or who by reason thereof shall charge this wasting Executor Put wee the Case that the Testator stood indebted to A. by Statute and to B. C. and D. by specialty not of record as Bond Bill c. and the Executor having no more in asseâ—s then only that hundred pound and this all being due to D. hee payeth him the whole hundred pound not having any thing left to satisfy any of the rest of the Creditors hereby wrong is done to none but A. who was a Creditor by Statute and therefore hee onely shall make this Executor to pay the like summe out of his owne goods since as to him only this is a devastation for that it was his election to pay of thother Creditors which hee would no sute being commensed by any of them consequently no wrong was done to B. nor C. And if no such debt had beene by Statute but all had beene Creditors by specialty and A. onely had commensed sute and that knowen to the Executor now if after hee payed all to D. hee stands only as to A. liable in his owne goods and not to B. nor C. But if the Executor had onely payd a legacy or debt by contract leaving nothing for satisfaction of the debts by specialty then had hee stood equally liable to each of the other Creditors Capiat qui capere potest viz. hee who first could recover or by the voluntary act of the Executor could obtaine payment must bee preferred if the summe would reach no further For it shall by this mis-payment or misconversion stand with the Executor as if hee had not payed it nor departed from it at all upon the matter and therefore I doubt not but it is free for him to give the advantage of this his error to which Creditor by specialty hee will so as hee shall stand free from all the rest no surâ—â—â—usage remayning nor any Creditor of record being For if there bee any debt upon record the Executor sued by a Creditor upon Bond may notwithstanding this his wasting plead in Barre of this sute that there is such a record of a debt not satisfied and that hee hath no more then that debt amounts unto and so admit so much still in his hands as hee hath misadministred though in kinde it bee not in his hands but mispent or unduly payed as aforesaid And what is before shewed of the Statutes precedency before Bonds in taking the advantage against an Executor for devasting or wasting the same is to bee understood of precedency of judgements before Statutes and debts to the King before judgements c. As touching the â—ourth point viz. how far the Executor thus wasting shall incurre dammage or make his own goods liable Doubtles no further then the value of the Testators goods wasted or mis-administred Therefore if one have advantage thereof to the full summe no other after shall for hee is no further a trespasser or wrong doer nor is the Testators estate any further or dâ—epelier damnified And as damages for trespas are to bee proportioned to the value of the wrong done and losse sustayned So also in this case the Executor by his misdoing doth not draw upon himselfe his Testators whole debts but so much onely as the goods amounted to which hee did mis-administer and which should have gone to the payment of the Testators debt if hee had not so misguided himselfe in the office of executorship which default hee must repaire or make good And this proportion seemes to me prooved by the Case in King Edward the third where the value or quantity is found specially of the goods administred wrongfully though there