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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50674	The touchstone of wills, testaments, and administrations being a compendium of cases & resolutions touching the same : carefully collected out of the ecclesiastical, civil and canon-laws, as also out of the customs, common laws, and statutes of this kingdom / by G. Meriton ...	Meriton, George, 1634-1711.	1668 (1668)	Wing M1811; ESTC R11357	81,710	267

or where the Executor doth refuse to take the Office upon him Jo. de Canibus Tract de Executoribus ult vol. part 1. q. 3. Swin part 6. sect 1. num 2. 244. The second hath his Authority from the Bishop or Ordinary and is he whom we call an Administrator and is put in where the Executor named refuseth or cannot b● Executor or when no Executor i● named in the Will and if there b● a Will then it must be annexed to the Letters of Administration and such Administrator is chargeable with the performance of the Will a● if he had been appointed by the Testator Bro. Testament 20. and Devis● 35. 31 E. 3. cap. 21. and 21 H. 8. cap. 5. Swin part 6. sect 1. 245. And lastly the Executor who derives his power from the Testator is he that is named Executor in the Testament to whom the Execution of the Testament is committed by the dead man and is called Executor testamentarius and hath his Authority immediately from the Testator and may without the Authorty of the Ordinary enter to the Testators Goods and Chattels and after Probation of the Testament may also Commence Suit against the Testators Debtors Plo. com in Case inter Griesby and Fox Bro. Executor 49. Swin part 6 sect num 4. Minsin in tit de Haered Inst. 246. When the King is made Executor of the Testament of another person he doth not take the office upon him but appoints certain persons to take the Execution of the Will upon them against whom such as have cause of Suit may bring their Action and others he appoints to take the accounts as appears in the Case of Catharine Queen-Dowager of England Mother to H. 6. who constituted King H. 6. her sole Executor and he appointed certain persons to take the charge of the Will upon them and others to take their Accounts Vide Rott Parliamen 15 H. 6. num 32. Co. 4 part Inst fol. 335. 247. VVhen a man makes several Executors and they live in divers Diocesses they shall all receive such benefit as accrews to them by the Testament onely by the Authority of that Judge who confirmed the Testament to them and the same course is to be taken by the Administrators who live in several Diocesses Refor Leg. Ecclesiast tit Testament cap. 37. 248. Now the Office of an Executor Testamentary doth consist in two things that is either in accepting or refusing the Executorship upon both which parts there are several Cases hereafter following in this Chapter very necessary for all Executors to know 249. If he that is named Executor be cited to appear before the Ordinary and do refuse to accept the Executorship or will not appear then the Ordinary or other Judge may commit the Administration of the Goods of the deceased as if he had dyed intestate but if the Executor afterwards be willing to undertake the Executorship then the Ordinary may revoke the Administration before committed but mean acts done by the Administrator until the Executor undertake are good and effectual in Law Bro. Exer. 49. and 101. and Admin 32 and 33. 31 H. 8. cap. 5. Vide Griesbie and Foxes Case ●low com fol. Swin part 6. sect 2. 250. Note that the Executor cannot be compelled to undertake the Office unless he have already meded with the Testators Goods as Executor for then he may be compeled to it and if notwithstanding he do still refuse and the Ordinary do ●ommit the Administration to him his refusal is void and he shall be ●harged as Executor And when one ●hall be said to meddle with Goods as Executor and when not is shewed afterwards in this Chapter Fitz. Abr. tit Exec. num 35. Olden de Exec. ult Volunt tit 7. in fine Swin part 6. sect 2. Noyes Maximes pag. 102. Hernes Law Convey pag. 87. 251. VVhere a term is devised to an Executor who enters and dyes before Probat yet in such Case the entry is good Executorship and his Administrator shall have it M. 2● El. Dyer fol. 367. 252. Note that every one to whom the Testator was indebted shall have an Action against the Executor so long as the Executor hath Assets in his hands but a Debt due to the Testator shall not charge the Executor as Assets till he have received it Terms of the Law verb Executor Br. Exec. num 112. Swin part 6. sect 3. 253. VVhere there be divers Executors the Actions Commenced by them ought to be in all their names and so must the Action that is Commenced against them name them all except it be in Case where some of them refuse to take the Office and the others onely prove the Will for in such Case in Actions brought against them those onely which prove the Will may be named and the other left out Bro. Exec. 117. Co. 9. lib. Rep. fol. 40. Noyes Max. pag. 102. Swin part 6. sect 20. Perkins sect 485. 254. If divers be made Executors and some of them refuse yet he which refuseth may release any debt before Judgement which was due to the Testator and it is as good as if he had never refused and so a sufficient discharge to the Creditor for every Executor hath an intire interest and therefore if two as Executors have a term and one of them grants all that to him appertains in this Case the intire Term shall pass Co. 5. li. fol. 28. Bro. Exec. 38 117. Dyer fol. 23 and 319. Swin part 4. sect 20. Noyes Maximes pag. 101 102. Perkins sect 485. 255. But one Executors releasing of Debts or selling of Goods shall not charge the other to pay so much of the Goods if there be not enough to pay Debts but it shall charge the party himself that did so release or convey Hernes Law Convey pag. 87. 256. Note that the Executor which refuses may joyn at any time when he will yea though it be not till after the death of the other Executor wh● proved the Will contrary to the opinion of Broke and so the Quere in Dye is well resolved 42 El. Henslowe Ca. Co. 9. li. fo 39. Perkins sect 485 Dyer fol. 360. num 42. Bro. Exec. 92 99 and 149. Swin part 4. sect 20 and part 6. sect 3. 257. But if divers be made Executors and they all refuse before the Ordinary and he grants Administration to another in such case they cannot then afterwards prove at any time so note the diversity between one refusing and all refusing 42 El. Henslowes Ca. Co. 9. li. fol. 39. 36 H. 6. Finches Law pag. 171. And Vide Bewacorne and Caters Case Mores Rep. fol. 258. If two be appointed Executors and one of them refuses and the other takes the Office upon him and then dyes and makes his Testament wherein he names the Executor in this case the Executor of the Executor cannot joyn with the surviving Executor neither in the execution of the first Testators Will nor in Suits or Actions and if the Executor of the Executor have any

if he write thus I make my Wife my of this my last Will and Testament leaving out this word Executrix yet in this Case his Errour shall not hurt it for the Law doth presume more was spoken though less was written and therefore she shall be taken for Executrix Swin part 4. sect 25. numb 7. Molin in l. 1. c. de Test sect de verb ob numb 8. in fin 11. Also if there be no Witnesses of a written Testament yet if it be certain and undoubted that the Testament is written or subscribed with the Testators own hand it is sufficient but if it be doubted whether it is his hand or no then the Testimony of Witnesses is necessary to confirm the same to be the Testators own hand or where there is no suspition of fraud proof may be made and allowed by comparing of hands with other writings signed by the Testator Maschard de probat verb. Testament Conclus 1352. numb 60. Swin part 4. sect 25. numb 8. Michael Grass Thesaur com opinionum sect Inst. Q. 16. n. 6. 12. Having spoken of a written Testament we shall now shew what a Nuncupative Testament is and that is where the Testator by word of mouth before a sufficient number of Witnesses doth declare his mind and names his Executor and this Testament is of as great force and efficacy as a written Testament except where Lands Tenements and Hereditaments are devised and to the making of this Nuncupative Testament no precise form of words is required neither is it material whether the Testator speak properly or unproperly so that his meaning do appear as is shewed before It is called Nuncupative à Nuncupando id est Nominando of naming an Executor and is most commonly made when the Testator is very sick and weak and past all hope of recovery Molineus in l. 1. sect Test ordin ff de verb. ob numb 8. in fin Just Instit sect de Test. ordinandis in fine Minsing in D. sect final Swin part 1. sect 12. part 4. sect 26. Terms of the Law verb. devise Noyes Maximes pa. 96. Perkin numb 476. 13. If such a Testament be put in writing after the Testators death yet it remains a Nuncupative Testament still Noyes Maximes pa. 96. Swin part 1. sect 11. numb 2. in princ 14. A man hath that priviledge in a written Testament which he cannot have in an Nuncupative Testament for in a Nuncupative Testament he must publish declare his minde but in a written Testament he may seal up his minde and keep it secret till after his death onely it be●ooves him to shew the same after it is sealed up to some Witnesses and say unto them This is my last Will and Testament or Herein is contained my last Will and so let them set their hands to some part thereof or otherwise to take such special Notes and Marks thereof as that they be able to prove the Identity of the writing after the Testators death and in such Case it is good enough though none of the Witnesses were privy to the Contents thereof Paris Consil 19. vol. 3. numb 25 26. c. Maschar Tract de probat Conclus 10. 1352. numb 173. Clar. sect Test. Quest 4. numb 3. Swin part 1. sect 11. numb 6 7 8 9. Simo. de Praetis de Interpretat ult volun l. 1. f. 31. 15. As touching priviledged Testaments there are three sorts thereof viz. Testamentum Militare Testamentum inter liberos Testamentum ad pias Causas That is a Testament made by a Souldier a Testament made by a Father amongst his Children and a Testament made for good and Godly uses Some other there are also but their priviledges are but small in comparison of these Mantica de Coni●●●u 〈…〉 voluntat lib. 1. Tit. 5 〈…〉 part 1. sect 13. 16. As to the first of these it is observable among the Civilians That a Souldier in Arms and in actual service of Wars is not disabled by any of those impediments whereby others are di●abled to make their Testaments except in Cases of Furor or lack of Reason and for other causes also when he is disabled Jure gentium And whereas there be divers which be prohibited to be Executors or Legataries to other persons yet notwithstanding they be Executors or Legataries to a Souldier except in some few Cases And whereas also no other person can die with two Testaments yet a Souldier may and both Testaments shall be deemed good according to the will and meaning of the Testator And likewise whereas another person cannot by the Civil Law die partly Testate and partly Intestate yet a Souldier may Minsing in Tit. de Milit. Testamen Instituend in principio Fitz. Abr. Tit. Execut. num 26. Franc. Mantica de Conject ult vol. l. 6. Tit. 1. num 32. Swin part 1. sect 14. Mich. Grass The saur com opin sect Testam Quest 3. num 1. Swin part 7. sect 11. num 5. 17. As to the Second where the Father maketh his Testament and nameth his lawful and natural Children his Executors and giveth them the residue of his Goods to this kind there also belongeth several priviledges for if there be found after the Testators death two Testaments of divers Tenors and it doth not appear which is first nor which is last in this Case the Testament made in favour of the Testators Children shall be deemed the later and shall take place whereas if neither be in favour of the Children nor otherwise priviledged then both are void except it be in case of a Souldier who by the Civil Law may die with two Testaments as aforesaid Also a Testament made in favour of Children is not so easily revoked as other Testaments are for whereas in other Testaments the former is revoked by the latter and that ipso jure without any express revocation yet by the Civil Law a Testament among Children is not revoked by a latter Testament wherein strangers are preferred unless it be mentioned and revoked by express words or unless the latter Testament be made ad pias Causas or else some great Displeasure or Enmity have happened betwixt the Father and Children or some like cause have come to pass whereby it may be made appear that the Father did repent him of the making of the said Will. And lastly another priviledge belonging to this Testament is That if there be no Witnesses to prove the same yet if the Testament be found among other Writings in the Testators Chest or like place and undoubtedly appear to be written or subscribed with the Testators own hand or by him procured to be written by some other then in such Case it is good enough but this Priviledge also is allowed to all other Testaments here with us in England as is shewed before in Num. 11. See the next Chapter Num. 33 40. Clar. sect Test Quest. 100. Franc. Mantica de conject ult volunt l. 6. Tit. 2. Swin part 1. sect 14. Mich. Grass Thesaur commun opin sect Testam

to the Childe or Children and the other third part called the death● part is left to his disposing and it no disposition be made thereof it falls to the Executor but note here that if the Childe or Children were Heir to the Testator or were advanced by the Testator in his life-time then the Testator may devise one half of the cleer goods and the other half shall go to his VVife F. N. B. Bre. de Rat. part bonor Bro. eod tit N. 6. M. 7. E. 4. fol. 21. a. Brac. li. 2. cap. 26. Fleta li. 2. cap. 50. Glan li. 2. cap. 20. Co. 2 part Inst fol. 33. Swin part 3. sect 16. Refor Legum Ecclesiast tit lest cap. 10. 180. Note where the VVife and Children ought to have a rateable part of the Goods of the deceased be it third part or half as the case is there also they ought to have a like part of the debts due by the deceased after they are recovered by the Executor or Administrator but of Leases they can have no rateable part where they use to have a rateable part of the moveable Goods and Debts recovered unless it be by special custom of the City County Deanry or place where the Testator dwelled and had such Leases Swi● part 3. sect 16. F. N. B. Breve de Rationabl part bon 181. This rateable part of th● Goods to the Wife and Children i● saved to them by the Statute of Magna Charta but note the Wife o● Children cannot sue the Executor o● Administrator for their rateable parts till all the Testators Debts b● paid and then what remains is to be divided according to the Rule● aforesaid into two or three parts before any Legacies be paid fo● they must all be paid out of th● deaths part after the division Magna Charta C. 18. Regist. fol. 142. 〈◊〉 F. N. B. 122. b. M. 7. E. 4. fol. 21. a● Co. 2 part Inst fol. 33. CHAP. VIII Several Cases concerning the bequeathing of Legacies and also touching Devises 182. AS an Executor may be appointed divers ways as is ●newed before chap. 5. so also a Legacie may be given after divers ways either simply or conditionaly c. Swin part 4. sect 3. num ● 183. That Legacie is said to be pure and simple which is given without a condition annexed to it and as in appointing an Executor it matters not after what form of words it be so it is in the bequeathing of a Legacie for it skills not after what form the same be given so that the Testators meaning do but appear whether it be in Goods and Chattels or Lands and Tenements Swin part 4. sect 4. num 18. 184. Note that a Legacy may be given from a certain time or until a certain time albeit the Legatary dye in the mean time before the day come yet the Executors or Administrators of the Legatary may recover the same when once the day is past as the Legatary himself might have done i● he had lived so long unless th● meaning of the Testator be to th● contrary or that it be such a thing as cannot be transmitted to the Executor as personal service but if th● Legacy be given after an uncertai● time as where the Testator give thee an hundred pounds when h● Son shall dye or the like there 〈◊〉 thou dye before the time come th● Executors or Administrators ca● then recover nothing So note th● diversitie Mich. Grass thesaur com opin sect Legat. quaest 43. Mant● ca de conject ult volunt li. 11. tit 2● num 8. Swin part 4. sect 17. Refor Legum Eccles tit Testament cap. 26. 185. If a man devise to his Daughter an hundred pounds when she shall be married or to his Son when he shall be of the Age of twenty one years here if they dye before the time appointed their Executors shall not have it But if the devise were of an hundred pounds to the Daughter to be paid her when she shall be married or to the Son to be paid him when he shall attain the age of twenty one years in such case if they dye before such time then their Executors may recover the Legacy Tr. 1653. B. R. in Dumlowe Shawes Ca. Hughes grand Abridg. 1 part pag. 664. cap. 14. 186. Note that a Legatary may not of his own Authority take the Legacy and serve himself but must receive the same at the hands of the Executor except in some cases as where the Legatary is possessed of his Legacy at the time of the Testators deaths for in such cases he may retain and keep it if there be sufficient assets besides in the Executors hands to pay the Testators Debt or if the Testators give license to the Legatary to enter to his Legacie then he may do it without the Executors consent and if he be both Legatary and Executor then he may serve himself Perkins sect 488. Hernes Law of Con. pag. 88. Socin Jun. Consil 111. vol. 1. Swin part sect 4. num 23. Perkins sect 570 572 573. 187. But the Legatary hath no remedy by the Common Law for any Legacie of goods to him bequeathed if the Executor will not deliver the same but he must in this case have a Citation for the Executor to appear before the Ordinary or other competent Ecclesiastical Judge to answer him in cause of his Legacie except in case where a particular thing is bequeathed as the Testators Horse or Signet c. and in such case the Legatary may sue at Common Law for the same Bro. devise num 3 6 14 27 30. Terms of the Law verbum Devise Swin part 4. sect 4. num 23. 188. Also if the Testator will that his Executors shall sell his Land and pay such and such Legacies out of the Moneys in this case the Legataries may sue at Common Law and not in the Spiritual Court for their Legacies Mich. 5 P. M. Dyer fol. 151 152. Vide M. 29. 30 Eliz. C. B. Germyes Case Leon. Rep. fol. 87. Tr. 17 Jac. C. B. Rott 895. Edwards Graves Case Hob. Rep. fol. 265. 189. But if the Legacies he granted to be paid out of Leases and not out of Fee-simple-Lands then the Legatary may sue in the Spiritual Court for such Legacie Brownlowes 1 part Rep. fol. 34. 190. Testamento cum duo inter se pugnantia reperiuntur ultimum ra●um est If there be divers devises of one thing in one Will the last devise taketh place only Co. on Litt. fol. 112. b. 191. If the Testator bequeath to A B all his Goods in this case it is the opinion of some that A B shall have the Testators whole Estate actively and passively onely his Lands Tenements and Freehold excepted being in effect his Executor or Heirs as the Civil Law terms him and is hereby chargeable with the Testator debts so far as the Goods will extend Gloss in L. his verbis sect de Haered Instit Swin part 7. sect 10. 192. But others are