Legacie in certaine and lying in Prender may be taken or had without the executors assent by the Legatee or him to whom it is bequeathed 106 2 When an executor can or safely may pay deliver or assent to a legacie 108 3 Whether one executor alone may doe it where there be many or what if the executor be an infant or a married woman ibid. 4 What shall amount to an assent of the executor and what to a disassent or a disability of assent 109 How a lease or chattell reall may be given to one for a time with remainder to another how not 113 6 Where an assent to the first or one part of the bequest shall amount to an assent for the residue 121 7 Of the manner of Assents and therein of Assents conditionall 123 8 What manner of interest the Legatee in the remainder of a Lease after the death of another hath during the life of that other and whether he may dispose of it during that time and how 125 9 Whether this remainder can be defeated by any act of the Devisâ—â— for life or by the death of him in Remainder first 126 10 By what acts or accidents a legacie may be forfeited lost or revoked as by revocation death of the Legatee before c. 127 11 Whether the executors assent shall have relation to the testators death and shall make good a grant before made by the Legatee 135 Chap. XIX DIvers cases of bequests considered and expounded 139 Chap. XX. OF the executor of an executor 146 Chap. XXI TOuching Administrators 148 Chap. XXII COnsiderations in conscience touching payments of debts Legacies and the preferring or respect of persons 149 Chap. XII Of the Order and method to be used by Executors in paiment of Debts and Legacies so as to escape a devastation or charging of their owne goods WE have gone through and dispatched the two first proposed parts viz. 1. Touching the being of Executors and the manner of their being 2. Their having and the manner of their having We come now to the third part viz. their doing or disposing of the testators estate Now this consists principally in the issuing of money though partly also in delivering or assenting to the execution of Legacies not being mony but other goods or chattels bequeathed Money is to be issued by executors foure wayes ordinarily About the funerall of the testator About proving his Will In paying of debts In paying and satisfying of legacies pecuniary As for the first burials be as of necessity for two respects viz. 1. Of charity to the dead that hee may be Christianly and seemely interred 2. To prevent and avoide annoyance to the living who by the very view of dead carkases would both be affrighted and within a few dayes distasted at the nose We know that under the Law the touching of a dead carkase made a man uncleane and to need purifying nor can we easily forget what the sisters of Lazarus said to our Saviour touching their brother when hee had beene dead two or three dayes viz. that the taking of him then out of his grave must needs bring a noysome savour Hereabout therefore some expence is necessary and that not only for fees to be paid which in London amounts to a considerable summe specially for such as are to be buried within the Church but also otherwise viz. for the Pall or Hearse-cloath the ringing c. As for feasting and banqueting it seemes not to me congruent to the sadnesse and dolefulnesse of the action in hand But howsoever that be yet where the testator leaves not sufficient goods to pay his debts festivall expence is to bee forborn except the Executor will out of kindnesse beare it with his own purse for dead debtors must not feast to make their living creditors fast I meÌ„tioned a coÌ„siderable amount of funeral fees payable in London and surely to let my thoughts fall back upon it a little it is worth consideration whether in that kinde and especially for those who dying there are yet carried into their countries to be buried the exaction be not either unjust altogether or too onerously excessive so also for much ringing contrary to the Canon made at the Convocation in the first yeare of King Iames. The next thing mentioned to justifie and occasion expence is the proving of the Will But this way a greater disbursement except for riding charges or by reason of opposition by a caveat put in or the like will not stand allowable then is prescribed by the Statute made in the time of Hen. 8. whereby the fees of Ordinaries and their Scribes Registers and Officers be limited And it is strange that these bounds have beene so much and so frequently broken and transgressed the rather for that long before in the time of King Edward the third by an Act of Parliament it is provided that the Kings Justices should as well at the Kings suit as at the parties grieved enquire after such oppressions or extortions for so they be called yea S. Germ. who was no stranger to the civill and canon law as appeares by his book saith that the Ordinary ought to take nothing for the probate if the goods suffice not for funerall and debts but hee meanes only that conscience is against it Now we come to the third occasion of disbursment viz. paiment of debts which is the maine part of our businesse We have before seene what debts lye upon executors having assets to pay them we are now to see in what order they must pay them as well Vt sint fidi dispensatores as for their owne indempnity ne quid res sua capiat detrimenti To put our selves into the better order or method of handling these things we will sort out debts into their severall kinds thus They are of these three sorts viz. either Debts of or upon record Or debts by specialty Or debts without specialty The debts upon record may be againe divided into foure sorts or kindes viz. Debts to the King or the Crowne Debts by judgement or recovery in some court of record Debts by recognizance Debts by statute staple or statute merchant Amidst these the debts to the Crowne are to have the first place or precedence so as if there be not come to the executor goods of greater valew then will suffice for the satisfaction of these he is not to pay any debt to a subject and if he be sued for any such he may pleade in Barre of this suit that his testator died thus much indebted to the King shewing how c. and that he hath not goods surmounting the value of that debt Or if the subjects pursuit be not so by way of action as that the executor hath day in Court to pleade but be by way of suing execution as upon statute marchant or staple then is the executor put to his audita querela wherein he must set forth this matter And there is great reason why the Kings
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
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
THE OFFICE AND DUTIE OF EXECVTORS OR A TREATISE OF WILS AND EXECUTORS DIRECTED TO Testators in the choise of their Executors and Contrivance of their Wills With direction for Executors in the execution of their Office according to the Law and for Creditors in the recovery of their debts Expressing the Duty Right Interest Power and Authority of Executors and how they may behave themselves in the office of Executorship With divers other particulars very usefull profitable and behovefull for all persons be they either Executors Creditors or Debtors Compiled out of the Body of the Common-law with mention of such Statutes as are incident hereunto LONDON Printed by T. C. for Andrew Crooke Laurence Chapman William Cooke and Richard Best 1641. The Preface AMidst the Readers of these Discourses some not yet unfriendly may aske perperhaps Quorsum haec or Quorsum sic why have we a tractate and discourse legall or why in English and not rather in the Law language To whom yea also to others perhaps lesse inquisitive it will be as I thinke a thing not unpleasing to heare some reason rendred why I have set my head and hands to this worke so little in use with those of our profession why also in English rather than in the language wherein our volumes of Law are for the most part and well-nigh wholly written First for the matter viz. my thus commâ—nting or making a tractate upon a legall theme I have long and strongly conceived that the more Nobles Gentlemen and others shall be acquainted with the Law of the Land and the justnesse equity prudence and providence thereof the more they will love it and affect it Ignoâ—i nulla cupido the want of knowledge of it causeth the leannesse of love to it Therefore to bring Nobles and Gentlemen into acquaintance with the Law is a meane as well â—o advance it in their estimation as to advantage them by it I have long thought that we who are the Professors of our Law have been more wanting to it than to theirs the Civilians and Canonists who have written very many volumes Spartam quam nactus es hane exorna hath been said of old and should be assayed anew More wanting than others before us of our owne profession have we also been as I think yet as of old Britton Glanvill Bracton besides not printed Fleta and Ingham did lead the way so since Master Littleton and more lately Sir Germin Perkins Fitzherbert Stanford Crompton Lambert Kitchin Sir Henry Finch Dalton have troden this path so as it cannot be taxed with novelty or singularity I mention not relaters or reporters of Iudgements and resolutions nor meere abridgers nor Authors of Books of Entries expressing formes of Declarations and Pleadings c. because these have troden another though for the Students and professors of the Law a very profitable path The tax and increpation of our late learned and judicious Soveraigne upon us the Professors of the English Law as being wholly in effect addicted to our owne private gaine and advantage with neglect of the publike had some strong operation upon me howsoever upon others setting for divers yeares past my pen on worke specially in Summer vacations upon divers particular subjects whereof this is one and the first borne To this I may adde the Crownes expectation of somewhat legall to bee published and set forth from time to time as appeares by the speciall Patents successively granted and renewed for the sole printing of books of Law There is one such in force at this present and another long hath been in remainder and expectancie to take effect upon the expiration thereof And now to adjoyne Sic to haec viz. the reason of my English writing to that of my writing upon a law theme First receive the said late Kings judgment touching both expressed in one of his speeches printed Thus. I wish saith he the Law written in our vulgar language For now it is in an old mixt and corrupt language onely understood by Lawyers whereas every subject ought to understand the Law under which he lives c. Herein Andrew Horne one sometime of our profession agreeth with the said late King saying Abusio est que lâ—s leges ovesque lour enchâ—sons ne soient sâ—â—us conus del touts It is an abuse saith he that the lawes with their grounds be not knowne by all Ergo to bee in a tongue understood by all More plainly and fally doth that our both well leaâ—ned and well descended S t. German sing in consort with our said late scientious King For he first brings in the Doctor of Divinity saying that hence-forth he will take more paine than before he had done to know the Lawes of England for that knowledge is Multum necessaria clericis laicis imo omnibus in hoc regno commorantibus etiam in foro conscientiae And this being in his first booke written in Latine After writing his second booke in English he expresseth that he so did for this reason viz. To the end that it might be under stood by all Which of us hath not heard it objected that we the professors of the Law seek to hide and secreat the knowledge thereof under this dark and distasted language wherein the law is for the most part written not that I hold it any just excuse for the nescience or negligence of any that our books are not in English Since first it were easie for any diligent and intelligent man specially if acquainted with the right French language so understand our broken or brackish French in a few dayes Secondly there be both statutes and some other law-books in English which are neglected by the most Thirdly though care hath beene in Parliament in Edward the third his time that Lawyers should plead that is argue and debate causes in English which was often desired by the Nobles and Commons till at last assented and enacted and in Queen Maries time care was taken that the Commissions of Purveyors should be in English to the end that all subjects from or of whom they would take might both see them to be persons authorised and so also in what manner they are directed to use their authority according to the Princes pious and princely care that his subjects should not be abused by his Officers Yet for this affaire of having all the Law-volumes speak English I have not heard nor read of any desire or endevour in Parliament Fourthly If the Annals and Reports were in English they are so replete with debates about formes of Writs Returnes Pleadings Essoignes Imparlances Protections Vouchers Aydpriers and Counterplees of both and the like as would easily distaste and discourage any not intending to professe and practise the law from versing much in them or passing through them This therefore as I thinke would not much effect the expressed desire The thing in my judgement fit and fruitfull to produce that good effect would bee to
and must have a Will proved and incase he doe make another Will for his state residue there must be two Wills proved But in th' other case where by one onely Will one is Executor for one part of the estate and another for another there being but one Will to be proved one proving of it sufficeth And though in the premises of a Will two be made Executors joyntly and equally yet there may be a Proviso that one shall not meddle during th' others life so as they shall be Executors successively and not joyntly and thus also to other purposes aforesaid a subsequent cause or Proviso may make the partition and division of authority But if the Proviso or clause subsequent be meerely contrary to the Premisses it wil be void as where two were made Executors with a Proviso or cause that one of them should not Administer his goods This was held voyde for repugnancy by Brudnell and Englefield Justices But Fitzherbert Justice was of minde that it was not voyd nor utterly repugnant For the other might joyne in sutes though not Administer and Justice Shelley was of a third opinion different frō all the rest viz. that here was a repugnancy but the last clause should controll the Premisses and so this one onely should be Executor Who may make an Executor SOme persons may be unable to make Wills and consequently Executors for that is all one whosoever may make a Will may make an Executor and he that may make an Executor may make a Will There be nineteene severall kinds of persons unable as the Canonests say to make Wills but with many of them we will not intermeddle because wee finde no mention of them in our Law The persons principally and most usefully to be considered of by us are either the defective in understanding as Infants Idiots Lunatickes and the like or defective in power or interest as women covert or married persons out-lawed attainted convict or excommunicate Some touch we will give of others as Aliens Corporations Villens Monkes and Fryers As for Infants and women covert because much is to be said of each of them and their Administrations wee will forbeare to treate of them in this place but after will doe it of each severally To begin with an Idiot naturally he is not able to make a Will as was resolved in the Spirituall Court because he wants the use of Reason to conceive what it is fit for him to Will nor doth the Common Law oppose this as I thinke A Lunaticke having Lucida intervalla that is some seasons of enjoying his right minde and freedome from his Lunacy may in those times of his right minde make a Will and Executors else not for even one by age or sicknesse become of non sanae memoria is unable to dispose of Lands or goods One deafe and dumbe borne may make a Grant saith Master Perk. if he have understanding which is hard as hee confesseth consequently much more a Will but in the time of K. Hen. 8. it is left a demurrer whether a Deede by such be good or not If but mute he may wage his Law and atturne by signes and so perhaps by signes declare his Will 44. Ass p. 36. An Alien may make or be an Executor so as he be not an Alien enemy for such cannot sue as in the late Queenes time was held but there the doubt was whether a subject of Spaine were at that time to be held an enemy no warre being proclaimed betweene the Kindomes though hostility exercised As for persons Attainted Convicted or Out-lawed it will be said that these can have no goods of their owne and consequently they can make no Wills nor Executors and it is not to be denied that we finde it pleaded sometimes by Executors that their Testators stood out-lawed But first it is cleare that all and every of these may have goods as Executors to others which neither are forfeited by Attainder or outlawry nor devested by marriage or Villenage Therefore as touching them they may make Testaments And that all these sorts of persons may be Executors is also evident So also touching Villens Monkes and Fryers who can have no goods to their owne uses And that one attainted of felony may have an Executor appeares by the Case in the late Queenes time wherein it was long debated whether such an Executor might maintaine a writ of Error or not to reverse the attainder of the Testator And as for other Out-lawries the Plea thereof by the Executors that their Testator was and died out-lawed proves not a nullity of the Will or Executorship for then they might have pleaded that they were never Executors But it tends to this that no goods did or could come to them for satisfaction of the debts by reason of out-lawry yet it hath beene delivered not of old onely in many Bookes but by some of late that debts upon contract where the defendant may wage his Law are not forfeit by out-lawry nor uncertaine damages for trespasse in battery or false imprisonment c. Quaer Of breach of Covenant But goods taken away by a trespasser may yet be forfeited by the Attainder or out-lawrie of him from whom they were taken for that the property in right still appertained to him and he might have taken them againe wheresoever he found them therefore the action for this shall not come to his Executor but for th' other not forfeited it may Whether an Excommunicated person be able to make a Will or not may be some doubt since Keble denieth him abilitie to present to a Church and in the very Point antiently the opinion of Canonists hath beene Negative but more lately grew Affirmative Who may be Executors more AN Excommunicate person cannot Sue that is proceede in Sute as Executor till he be absolved there being danger of Excommunication to all that converse with him but this makes not a nullity of his Executorship nor over throwes the Sute but stayes it onely from proceeding untill absolution As for persons attainted or outlawed wee have before spoken Affirmatively in way of proofe that they may make Executors for continuation of the Executorship So of Aliens and others before Recusants convicted at the time of the death of any Testator are disabled to be his Executors Whether Corporations Compound or consisting of divers persons may be made Executors or not I doubt First because they cannot be Feoffees in trust to others use secondly they are a body framed for a speciall purpose thirdly they cannot come to prove a Will or at least to take an oath as others doe What a man may give or dispose by his Will HAving cōsidered of the makers of executors by Will and of them so made Let us now consider what by this Will may be disposed given or bequeathed And first hee who himselfe is an Executor cannot by his Will give or bequeath to any
A. posessed of a Lease for sixtie yeares of one hundred pound Land mortgageth it for five hundred pound or be it that the mortgage or pledge be of a Jewell or peece of Plate for halfe the value and that before the day limitted for payment and redemption A. having made B. his Executor dieth and B. at the time and place maketh payment as was conditioned Now the question is whether this Lease Plate or Jewell being worth much more than the summe for which it was mortgaged shall be in him wholly in his owne right and to his own use or partly if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies Here it must be cleerely admitted that B. was inabled to this redemption onely and meerely by the Condition annexed to the mortgage or pledging It must also be admitted that this Condition and the power or interest to take benefit thereof to him came and was derived onely as Executor of A. This being premised it must needs follow as to me it seemes that the Condition working and having his operation in the redemption to destroy the Grant mortgage or pledging it must needs make these againe the Testators goods in statu quod prius and so to be in B. as Executor since in that right onely he was intituled to take benefit of the Condition For what is it which hindred before this from being the Testators goods nothing certainely but onely the force and strength of the mortgage or pledge Now by the redemption that is become voyd hath it losts its force therfore the property of these things must needs now be as if no such mortgage or pledge had beene or as if it had at the first beene voyde and of no force Thus must the Condition worke for him who made it viz. A. the Testator and those of the contrary opinion in the time of King Hen. 7. doe yet say That by this redemption the Testator is so much in debted to the Executor as he disbursed for the redemption which could stand with no reason unlesse by it the property and interest should be reduced to the Testators behoofe That thus it is is also proved as to me it seemes by the Case of mortgage of Inheritance upon which the heire making payment according to the condition is not now in as a new purchasor but as heire so as he shall have his age and be in Ward even for this Land Yea it shall be Assets in his hands for satisfaction of his Fathers or other Ancestors debts which in some respect is a harder Case than that of the Executor for he hath meanes to satisfie himselfe of the money disbursed either out of the thing redeemed or other goods of his Testator but the heire hath no such meanes Yet it will be asked how the Executor can be free from mischiefe for if this thing redeemed be intire as the Cup or the Lease the whole will be taken in execution for the Testators debt To admit this yet here is one cleare way of remedy viz. the Executor may before such Execution sell the thing and so pay himselfe and retaine the surplusage to the Testators use and the like of this is frequent in use viz. for Executors to pay of the Testators debt with their owne money and to make themselves satisfaction out of the Testators goods Besides it not impossible that this redeemed thing should be thus in interest parted that answerably and proportionably to the summe disbursed for redemption with reference to the value of the thing redeemed a moyetie or third part or three parts therof should be to the Executor in his owne right as his owne proper goods and the rest in him as Executor As posito that A. and B. were Tenants in Common of such an entire Chattell A. maketh B. his Executor and dieth Now hath B. one moyety as Executor and another as his owne proper and upon a Judgement against him as Executor that moyety onely which hee hath as Executor must be taken in execution and here may be remembred how in execution of a Judgement or levying of an Amerciament out of an intire Chattell of more value than the summe to be levyed the whole is to be sold and the surplusage above the debt or Amerciament is to be delivered backe to the owner For in all this debate we must presume the thing redeemed by the Executor to be of better value than the summe payd else wee may easily admit the whole to the Executor Againe the Lease for yeares is not so intire a thing I meane the Land let but that thereof partition may be made yea inforced by Action betweene joynt tenants and Tenants in Common But here will be objected the Case of redemption by the daughter and heire who though she have a brother borne after so as now she is no longer heire yet she shall as the Booke saith retaine the Land redeemed from the heire as a Perquisite or Purchase As for this which I will not oppose the Law so frameth to the favour of the daughter because of great mischiefe to her if being stripped of the rest of the Inheritance by the birth of a brother she should also lose that which her money had redeemed without having any remedy to have her money againe or any recompence for it but in the other Case there is no such mischiefe for that the Executor may pay himselfe as hath beene shewed Now on the other side if the Case shall be understood that the redemption was by payment after the day then will I easily admit that the property or interest is in the Executor to his owne use or that the Condition now having no power to reduce it backe or to operate any thing It is rather a re-emption than a redemption since it was at the Will of the Mortgagee to dispose it at his pleasure and any stranger as well as the Executor might thus have redeemed viz. repurchased it therefore onely Equity and not Law in that Case can make any part of the value Assets in his hands And so also I thinke if wee should admit in the other Case of payment at the day that the property of the chattell is to the Executor as his owne and not his Testators goods no part of surplusage of value can in Law be Assets howsoever in Equitie Lastly if the Executor redeeme by payment at the day with the Testators owne money or goods none will doubt but that the thing redeemed is in him as Executor and the money by him payd for redemption is well Administred the goods redeemed being of better value But this way it makes no difference whether the whole value of the goods redeemed shall be held Assets and the money payd for redemption stand drowned therein or that that summe be still adjudged in the hands of the Executor as Assets and onely the surplusage of the thing redeemed over and above the summe payd for redemption
debts should thus be preferred before any subjects viz. for that the treasure Royall is not only for sustentation maintaining of the Kings household but also for publick services as the warres c as appeares by the statute 10. Rich. 2. cap. 1. And therefore it is as I conceive that Bracton saith of the treasures or revenues Royall Roborant coronam they doe strengthen or uphold the Crowne And for the like reason as I think did God inact touching the possessions of the Crown that if they were given to any other then the Kings owne Children they should revert and come back to the Crowne the next Jubilee which was once in fifty yeares sed de hoc satis But this priority of paiment of the Kings debt before the debt of any subject is to be understood onely of debts by or upon record due to the King and not of other debts If any ask how the King should have any debts which shall not be of record since by the statute 33. of King Hen. 8. cap. 39. it is inacted that all Obligations and specialties taken to the use of the King shall be of the same nature as a statute staple To this I answer that there may be summes of money due to the King upon wood sales or sales of Tinne or other his minerals for which no specialty is given so also of amersements in his Courts Baron or Courts of his Honours which be not Courts of record The like of fines for coppyhold states there So of the money for which straies within the Kings Mannors or liberties are sold Also as the law hath lately beene taken and ruled in the Exchequer even debts by contract due to any subject are by his outlawry or attainder forfeitable to the Crowne Yet neither these nor those due to such person outlawed or attainted by bond bill or for arrerage of rent upon lease is or can be any debt of record untill office thereupon found for although the outlawry or attainder be upon record yet doth it not appeare by any record before office found that any such debt was due to the person outlawed or attainted Thus are not these debts to the Crowne to have priority of payment before the subjects debts though the Kings debts of record are so to have so that if a subject to whom the testator was indebted by specialty sue for this debt the executor must pleade that the testator dyed indebted thus much to the King by record more then which he left not goods to satisfie if the truth of the case so be for if there be sufficient to satisfie both then the subject creditor is not to stay for his debt till the Kings debt be levied And if the subject creditor sue execution upon a statute so that the executor hath no day in Court to pleade this debt to the King then is the executor put to an audita querela wherein he must set forth that matter and so provide for his owne indempnity But what shall we say of arrerages of rent due to the King surely where it is a feefarme rent or other rent of inheritance I see not how it can come under the title of debt since for it no action of debt is maintainable so long as the state continueth in him to whom it grew due and I find that the Lo. Dyar M. 14. Eliz. said that the King could but onely distraine for his rents and not otherwise levie them of lands or goods and that the King by his Prerogative may distraine in any other lands of his tenant our bookes tell us but no more Yet I know it hath beene otherwise done of late in the Exchequer which if it have beene the ancient and frequent use of the Exchequer it will stand as law though unknowne to the Lo. Dyar Now rent upon a lease for yeares differeth from the other since for the arrerages thereof an action of debt lyeth but how can either of these be debts of record when the not payment may be either in the Court of Exchequer or to the receiver generall or particular how then can there be any certain record of the not payment so as to make any certain debt upon record Wee know statutes have beene made to make the lands of receivers subject to sale for satisfaction to the Crown and besides that some ancient Patents direct the payment of Fee-farmes into the hands of Sheriffes the statute of Westm 1. cap. 19. provides remedy for the King against Sheriffes not answering the debts of the Crown by them received so as the Kings Farmer or debtor may have paid his rent or other debt and the Crowne have not yet received it Of Fines and amercements in the Kings Courts of Record there is no doubt but they are debts of record Come we now to the debts of subjects and first those of record touching which I shall not be able to hold so good a method and so well to handle things by parts as I would for that the parts so stand in competition one with another for precedencie as that they must of necessity thereabout conflict and interplead one with the other and contest one against the other yet for the Readers better ease and ability to finde out that which may concerne him in his particular case I will in the best sort I can single out these things into severall parts and place them in severall roomes or stations First considering how it shall stand between one judgement and another had either against the executor or testator Secondly how betweene judgements and statutes or recognizances Thirdly how betweene recognizances and statutes Fourthly how betweene one recognizance and another Fifthly how betweene one statute and another adding to each some observations incident Now next to the debts of the Crown are judgements or debts recovered against the testator to have priority or precedencie in payment as being of an higher nature or more dignity than any other for that statutes and recognizances though they make debts upon record yet are they begotten but by voluntary consent of parties whereas in every judgement there hath beene a course and work of Justice against the will of the defendant as is presumed and this in a court of justice and the records of such judgements are entred in publike rolls not kept or carried in pockets or boxes as statutes and untill inrolment recognizances are Therefore executors must take heed that judgements against their testators before debts any other way if they have not sufficient for both be first satisfied lest they draw the burthen of this debt upon their owne backs Now their way to help themselves being sued or pursued for other debts is the same before delivered touching debts upon record to the Crowne viz. by plea where they may plead as in Sâ—ire facias upon a recognizance or suit upon band and by Aâ—dita querela where they cannot plead as when execution is sued
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
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
must needs bee a dying for part testate and for part intestate As for the second point viz. wives or women coverts being made executors and so having the office of executorship put upon them against their husbands will there hath also beene diversity of opinions In the time of King Edward 1. Brab Justice saith shee may executor without her husband and the administration shall bee delivered to her onely And I thinke he meant that this might bee without the consent of her husband or whether hee would or not for so is it said in the time of King Henry the seventh to bee the Law spirituall and indeed in Courts spirituall no difference is made betweene women married and unmarried for ought I can finde there a wife sueth and is sued alone without her husband hee intermedleth not nor is intermedled withall touching the things pertaining to his wife But at the common law it is otherwise and there as Bryan Chiefe Justice saith a wife without the assent of her husband cannot be executor he meaning thereby that the husband may oppose and hinder it for such an one may be named executor in and by a Will without the knowledge of her husband let us then see how after the death of the testator the husband can hinder her proving of the will or intermedling to administer since it may be a matter both of much trouble and danger to him to have the executorship fasten upon his wife and consequently upon himselfe On the other side it may be a benefit and advantage to the husband and therefore we will also consider whether the husband may though his wife would refuse assume the executorship and fasten it upon her The testator therefore being dead and fame or common bruit carrying it to the Ordinary that the wife of I. S. is made executrix if she come not in gratis or voluntarily to prove the Will Proces or a citation is to be sent out of the Spirituall Court against her to enforce her comming in to take on her the executorship She comming may cleerely as well as any other person especially if her husband concurre with her therein refuse this office trust and charge so as if there be no other executor named the Ordinary must commit the administration If she should not come and appeare she should be excommunicate as I take it notwithstanding any allegation or intimation by her husband of his unwillingnesse to have her take upon her the executorship But suppose she doth come into Court and offers her selfe ready to take the executorship upon her and on the other side her husband expresseth his disassent therunto praying that she may not have the execution of the Will to her committed what will then be done This I confesse pertaines to another learning and not to that of our profession but forasmuch as I find that in the Courts spirituall a wife standes in the same plight and state as a woman sole the husband not intermedled with all in the affaires of the wife Therfore do I conceive that in that Court the husbands refusall wil not be of force to hinder the committing of the executorship to the wife not refusing at least if there come not a prohibition to stay the Spirituall Courts such proceeding but whether a prohibition be in such a case to be granted or not as I find no resolution in my books so wil I not take upon me to resolve This stands cleere in the rules of the law of England that the wife is under the husbands power and cannot contradict him in pleading and doing other acts even touching her own Freehold nay she cannot take lands nor goods by gift or conveyance without her husbands assent as the law hath been and for ought I know is taken But if once the Will be proved and the execution thereof committed to the wife though against her husbands mind and consent I think it will stand sirme and the husband and wife being after sued cannot say that she was never executrix and I doubt whether the wife administring without the husbands privity and assent although the will be not proved do not conclude her husband as well as her selfe from saying after in any suit against them that she neither was executor nor did ever administer as executor Yet perhaps this administration by the wife against her husbands minde will as against him be as a voide act else cannot I see how Brians opinion before cited viz. that the wife shall not be an executor without or against her husbands mind can be law On the other side if the husband of a woman named executor would have his wife to take upon her the execution of the Will and to prove the same but she will not assent thereunto wishing perhaps that gaine and benefit rather to some of her kindred by way of administration then to her owne husband by her executorship as sometimes wives accord not well with their husbands in this case I think the Court Spirituall will not fasten the executorship upon the wife against her will But dato that the husband though the Will be not proved doth administer as in the wives right but against her minde and will shall she be now hereby bound and concluded so as after she cannot decline or avoid the executorship and surely I think that during her husbands life she stands concluded at the common law for that there she shall not be nor can be sued alone as executor and then being sued with him she must joyne in plea with him viz. that she neither was executor nor administred as executor and then this act of her husbands given in evidence will as I take it cause that the verdict be found against her not so after her husbands death then she may refuse as the Lord Dyar saith and citeth as resolved These things I thought good to offer to consideration and so leave them without resolution Difference perhaps may be where a woman so made executor taketh an husband after the testators death before either proving or refusing to prove the Will and where she is made executor during the coverture as there is in case of a discent of her land to the heire of a disseasor for when there is upon her such a state of election she marying before her resolution or determination doth upon the matter deliver it into the husbands hands not so where it first findeth and falleth upon her in the state of coverture if the husband were indebted to the Testator this making of the wife executor is as I take it a release in law as well as if she were the debtor but if after the testators death she do marry such a debtor it is a devastation The third Point Touching the administration or execution of the Office of executor by a Femme covert and her husband WE will now come to admit the execution of the will assumed by concurrent consent of husband
and wife and the will proved with both their likeing in the wives name and examine what acts the wife of her selfe is able to do and what her husband without her It hath beene conceived by many of old and by some of late that if a Femme covert or maried woman executrix release a debt of her testator or give away the goods which she hath as executor or deliver a legacie bequeathed it was firme and good and on the other side that her husbands gift or release was of no value for that the administration or execution of the will is committed to the wife only and some have gone so farre as to say that she may sue or be sued without her husband in the Courts of Common Law I meane for in the Spirituall Court it is true the husband is not joyned with the wife in suit but the law is doubtlesse in all those points contrary as not only some opinion also was of old viz. in the time of H. 7. but also hath beene in the late Queenes time resolved for otherwise if the wives gift or release should stand good her act might exceedingly endamage her husband and make his goods lyable to the creditors the testators state being wasted by the gifts or releases of his wife Wherefore it was held in the said late case that unlesse due payment were made to such women covert executors their releases or acquittances be void and so also their gifts and grants yea it was then held that the husband of the wife executrix may give goods or make releases of debts at his pleasure But doubtlesse by mariage neither are the goods though personall which the wife hath as executor devested out of her and setled in her husband as her own goods are nor if she dye shall they acrue to the husband if no alteration were of the property but shall go to her executor or to the next of kin being administrator of her testator if she have no executor and so was it held in the first yeare of Queene Mary Yea though for any other goods which the wife had in her owne right before marying the husband alone without naming the wife may maintaine an action of trespasse yet touching such goods as the wife hath as executor the action must be brought in the names of the husband and wife to the end that the damages thereby recovered may accrue to her as executor in lieu of the goods So also must the replevin for those goods be in both their names But although the husband be thus named with the wife yet principally is it the suit of the wife and therefore in such actions or in debt by husband and wife she being executor if it come to triall by Jury the husband being an alien yet shall he not have triall per medietatem linguae or alienigenarum that is by halfe aliens as in other cases Cases where an alien is party to a suite is to bee had And whereto a wife made executor power is given to sell land of the testators shee may sell to her owne husband as was resolved in the time of King Henry the seventh where the Feoffees it being land setled in use were committed to the Fleet for that they would not execute an estate to the husband according to the wives state But of this I much marvell since the Law intends the wife so under the husbands command and subjection that it holds not her disposition of land to him by will free nor therefore of force and how shall this then be conceived to be but a partiall sale yet volenti non sit injuria and he that will put such power into the hands of a woman under coverture doth in a manner subject it voluntarily to the husbands will And it hath been held by some that even an infants or femme coverts conveyance in such case of necessitie should stand firme and unavoydable because of the condition expresse or implied that the state should bee void if no such conveyance made Touching infants and their making or being made executors BEing now to consider of disability by age for want of yeares in persons making or being made executors Let us first take view of the severall ages of men and women to severall purposes materiall in the lawes judgement and respect And first touching a woman Wangford in Henry the sixth his time shewes and other books approve that she hath sixe severall ages respected in and by the law As first the age of seven yeares for her father to have aid of his tenants to marry her Next nine years to deserve dower that is that in case she be of that age at the time of her husbands death shee shall be endowed but not if she be any thing under those yeares the Law being Physically informed that a woman at those yeares may conceive a child but not under them But of somewhat different opinion was as it seemes the Parliament in the late Queens time when it was made felony to have unlawfull carnall knowledge of any woman child under the age of ten yeares it being then conceived as I thinke that no such could consent The age of twelve yeares is a womans time for assenting or disassenting to marriage in more tender yeares had For so it appeares by divers bookes although Mr. Littleton have here no distinction between male and female The age of fourteen years is a womans time to be in wardship or not so as if she be any thing above those years at the time of her ancestors death she escapeth wardship The age of sixteene yeares is her time of comming out of wardship being once fallen under it for although had she beene full fourteene she had escaped it yet not so being at the time of her ancestors death her wardship lasteth till sixteen yeares except the Lord shall sooner marry her And lastly the full age of a woman whereby she is inabled firmely and unavoidably to make grants or conveyances is one and twenty yeares as well as for the male before which time be it that she being sole make a feofment or other conveyance or being married alien her land by Fine and her husband of fuâ—l age joyne with her yet is it infirme and avoydable Now of the male or man the first age materiall and setledly resolved on is twelve years for at that time each male is at the Leet to sweare his fidelity to the King this women doe not and therefore are they never said to be outlawed but to be waived because they have not this admittance into the Law which males have This hath been as I think the ground of that speech That women are lawlesse creatures The second age of males is fourteen yeares accounted by the Law the age of discretion especially materiall to two purposes viz. First that if one under that age commit an act amounting to felony yet is he to stand free
as I conceive ability to sue the debtor in his owne name but in our law it is otherwise the suit must be in the executors name for a debt or thing in action cannot be assigned except by or to the King and only at the common law is the debt recoverable but the Spirituall Court may force the executor to sue or let his name be used in the suit for and by the legatee If one bequeath all his moveables debts due to him are not bequeathed nor corne nor fruit growing on the ground nor stone nor timber prepared for building as the Canonists and Civilians hold On the other side if one bequeath the moiety of all his goods the legatee shall have only the moiety of that which remaines after debts payed for that only is to be accounted the testators which he hath ultraes alienum By a bequest of all utensils or household-stuff plate nor jewels are not given If one bequeath to his wife all her apparell she shall not have as some Civilians say her ornaments of gold or silver by which is meant as I take it chaines jewels bracelets rings c. but others are of contrary opinion except they be such things as are not lawfull for her to weare If a Bed be given by a will Venit ornamentum ejus saith the Civilian that is the furniture thereof passeth viz. not only the bed bedsteed bedcloaths but also the curtains and valents as I take it But I think that by gift of a Coach by will the Coach-horses passe not yet perhaps the furniture of the Coach-horses may passe as appertenant to the Coach for so I think they shall do rather then by bequest of the Coach horses without the Coach If one bequeath to A meat drink and clothing or alimenta he shall have saith the civill law also lodging habitation and all things necessary for the maintenance of life viz. as I take it fire and washing c. If one bequeath to his daughter ten pounds a yeare for her apparreling and she demandeth none in foure yeares now shall she not after that time have the arrerages of this ten pounds by yeare for the time passed If a man bequeath one of his horses or cowes not naming which to I. S. he is to chuse which he will so it be not the best of all saith the civill law and perhaps the mention of that exception growes out of respect to the hariot which the Lord should have or the mortuary which the Parson should have A man bequeathes thirty pieces of twenty shillings to A twenty to B and ten to C to be had in such a Chest or Casket and it is found after his death that there be but thirty in all in that casket or box now each shall be abated ratably saith my summist so as A shall have fifteen B ten and C five and this stands with good reason and justice for so each hath a proportionable part And it were reasonable that it were by Parliament established for law that all both legatees and creditors should be payed in like proportion where the state will not suffice for full payment of each rather then that an executor should have power to pay one all and another nothing yet if the testator left sufficient to make good all those sixty pieces bequeathed Quae. if that which is wanting in the casket shall not be supplyed and made up for if the cases following found with the same author be good law it should seeme so to be If one saith he bequeath to I. S. that which is another mans and whereto the testator hath no right then ought his executor to buy it and give it to the legatee or else satisfie him to the full value and this not only by the civill but also by the canon law and in foro conscientiae saith my author Againe if A bequeath to B such an horse by name and after sels away that horse and dyeth now is his executor bound to answer the value thereof to B and if the testator after his sale of that horse had bought another and called him by the same name as the first now shall this later horse passe to B saith the book except it can be proved that the testator sould the former horse of purpose to revoke his will touching that bequest So againe finde I that if one having but a moity or one halfe of Green close or of a stack of corne or other chattell doth give the whole so as the words be apparant to reach to more then his moiety then must the executor buy out the others part for the legatee or give him the value but if the words be but generall so as they may be reasonably satisfied with the testators part no supply shall be made So also if one having goods in pledge bequeath them it shall be construed to extend no further then his right A bequest is made of an hundred pounds to be payed at a future time viz. divers yeares after the testators death a question is made by the Summist whether the profit of the money in the meane time shall go to the legatee or the executor and he resolves with this difference if the day were given in favour of the legatee being an infant who could not safely receive it any sooner then he shall have the profit but if the respite of payment were in favour of the executor then shall the legatee have but the bare summe without any addition of meane profits If one bequeath all his terme or goods to his executor for payment of his debts or debts and legacies it is a void bequest because it is no more then the law would say if he had sayed nothing So if it be generally to performe his will If one seised in fee simple of land bequeath it to his executor to pay debts the executor hath no state of freehold for if he should then it must be either for life which might end by his quick death before debts payed or in fee-simple which would carry away the land for ever from the heire where perhaps a few years profits might suffice to satisfie the debts yea then by the death of the executor the land should discend to his heire and not go to his executor who would be executor of the first testator If one give or grant all his goods having leases for yeares as well as moveables the leases shall not passe as was held in the time of Ed. the 6. And so also was it admitted in Portmans case for the word bona comprehendeth only moveables by the better opinion there But the point in that case was pertinent to this place viz. a bequest in a will of all the testators goods and whether thereby a lease for yeares passeth or not was divers times debated but not resolved the Judges differing in opinion in that point but in
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