plead any such Iudgement c. in barre of any other debt sued for by any other Creditor the Creditor may by speciall pleading set forth this matter of Covin and avoid the plea and barre of the Executor or Administrator If one Creditor whose debt is in equall degree and presently due and to be paid begin a Suit against the Executor or Administrator for his debt and hee hath notice that the Suit is begun against him or the Action is laid in the County where the Executor or Administrator doth dwell or as some have said in London in both which cases it seemes he is bound to take notice thereof at his perill and after this Suit begun hee doth make voluntary payment of another debt in equall degree in all respects for which no Suit is begun this is a devastavit in the Executor or Administrator and if he have not Assets to satisfie him who began his Suit first he shall be compelled to satisfie so much thereof as he doth voluntarily pay to the other and that out of his own estate And yet an Executor or Administrator may make voluntary payment of any debt due by Record as by Iudgement Statute c. after such a Suit begun and justifie it If two Creditors in equall degree to all purposes begin to sue for their debts at one time in this case the Executor or Administrator cannot safely make voluntary payment to either of them unlesse he have enough to pay them both but his safest way is to pay him first that in a due and legall proceeding for he may not covinously help one of them to a Iudgement sooner can first recover it by Iudgment and Execution And yet if in this case no Suit be begun the Executor or Administrator may make voluntary payment to either of them in equall degree of his whole debt albeit he have no Assets left to pay unto the other any part of his debt If A and B be two Creditors in equall degree and A begin his Suit first and after B doth begin his Suit and it happeneth that B bonâ fide without any Covin or agreement between him and the Executor or Administrator doth get Iudgement and Execution first in thiâ— case the Executor or Administrator may make payment â—o B first of all But if the Executor or Administrator doth by any Covin and agreement help B to his Iudgement and Execution first and by this meanes he is first satisfied if there be not Covin enough left to satisfie A he must satisfie him out of his own estate If two Suits begin at or about one time upon two severall Obligations and the Executor is forced to plead to them both before either of them hath a Iudgement so that he cannot plead the Iudgement that the other hath against him and he hath not Assets to satisfie both the debts sued for and after the Plaintiffs in both the Suits get Iudgement and Execution Quaere what the Executor or administrator may doe in this case And here note by the way that it is policy for a Creditor that hath cause to sue an executor or administrator to bee doing bâ—times and to get judgement and execution assoone as he may for it falleth out in this case That he that doth first come shall bee first served After all the debts are paid in such order and manner as before then is the executor or administrator to pay and to deliver the Legacies and herein the executor may preferre himselfe so that if any Legacy be Doct. St. 34. Plow 54â— Swinb 110. 114. given to him he may detaine and deduct it albeit there be nothing left to discharge the Legacies given to others and after he hath satisfied himselfe he may satisfie and deliver what Legacies he will albeit there bee not enough to satisfie all the Legatees or he may pay to each of the Legatees a part of their Legacy and deduct a part out of every Legacy where there is not enough to satisfie all the Legacies But if any particular thing as a Lease or a horse or the like be given this must be delivered accordingly and may not be sold by the executor or administrator to pay others all or any part of their Legacies and if there be enough to pay all the Legacies they must be paid all according to the Will and it is said by some that if an executor or administrator make no Inventary of the goods that he must pay all the Legacies whether he have Assets or not The last thing an executor or administrator is to take care of Swinb Part. 6. Sect. 17. is to make an account for it is â—eld that an executor or administrator Fifthly in making an Account is not bound in Law or Conscience to make restitution for personall wrongs wherein this is to be known That the Ordinary may if he will call the executor or administrator to account concerning the goods and chattels of the deceased either generally or particularly as the case requireth and that with or without the Creditoâ—s or Legataries instigation within a year or what time he will unto which account he may call all the Crâ—ditors and Legataries and therein the executor or administrator must shew what he hath received and what he hath laid out and provâ—â—â— in such sort as the Ordinary shall like And then if it be found he hath faithfully and fully administred the Ordinary may acquit him of the burthen and then hee is discharged of all Suits in the Spirituall Court but this account and discharge will not help nor availe him at all to discharge him of Suits at the Common-Law The Office and duty of the Ordinary after the death of any Coo. 5. 83. 9. 39. Litt. Broo. Sect. 233. F. N. B. 120. Dâ—er 23. Doct. St. 132. person within his Diocesse is if he hear of any Will made and any Executor appointed to cite the Executor and to compell him to come in and prove the Will and to accept and take upon him the administration of the goods or to refuse it and if the Executor Broo. Executor â—0 Testament 27. Stat. 31. Ed. 3. c. 11. 13 Ed. 1. c. 19. 21 H. 8. c. 5. refuse or if there be a Will made and no Executor appointed the Ordinary must commit the administration cum testamento annexo to whom he shall think fit and take Bond of the admistrator to performe the Will And if there be no will made he is to grant the administration of the goods to the next of kinne if he or they require it and if not to whomsoever besides shall desire it or if no body seek it he may grant letters to whom he will ad colligendum bona defuncti and thereby take the goods of the deceased into his own hands and then it seemes hee is to pay therewith the debts and Legacies of the deceased so farre as the same will reach in such order as the Executor or administrator is
and if it doe the party is not bound to seal it If one covenant to levy a fine at the next Assises for thirteene Curia Hil. 7 Iac. Co. B. years extunc this shall be taken from the time of the fine levied and not from the time of the covenant If one bargain and sell land to me by deed indented and before Adjudge in Sir Jo. Brets case the inrolment of the deed I do covenant with I S to convey all the land whereof I am seised and to doe this before such a day and before the day the deed is inrolled in this case my covenant shall not extend to this land conveyed to me by this bargain and sale If A covenant with B that in consideration of a mariage between Dier 371. the son of A and sister of B that hee at the costs of his son and by his sufficient deed will before Easter day assure land to his sonne and B doth covenant that if A doe performe this then hee will make him a generall release in this case albeit A be ready and the son doe not tender the assurance and the conveyance is not made B is not bound to make any release If one covenant to keep and leave a house in the same or as Fitz. Covenant 4. good plight as it was at the time of the making of the lease To repaire the houses in this case the ordinary and naturall decay of it is no breach of the covenant but the covenantor is here by bound to doe his best to keepe it in the same plight and therefore to keepe it covered c. If the words of a covenant be that the lessee shall have thornes Dier 19. by the assignment of the lessor and necessary fuell also it seemes For the having of houseboot c. by this that there must be an assignment of the fuell as well as of the thornes If the lessor covenant with his lessee that he shall have sufficient hedgeboote by assignment of the bailif of the lessor in this case Dier 19 20. and by this the lessee is not restrained from that liberty that the law doth give him and therefore that he may take without assignment But if the words be negative that he shall not take without assignment or that he shall take by assignment and not otherwise contra If A doth covenant with B that where as a mariage is intended Trin. 21 Jac. B. R. George versus Lane to be solemnized between A and C the daughter of B at or before To convey lands of the value of c. the fourteeneth day of August next and where the said B hath paid to the said A a thousand pound for portion c. the said A in consideration thereof doth covenant with B that he within one yeare of the day of the mariage will assure lands of the value of foure hundred pound per Annum in this case albeit the mariage be not before that day yet the covenant must be performed If one make a lease for years of a Manor and covenant that the That the lessee shall make estates lessee shall make estates for life or years and that they shall be good Per Justice Bridgman in this case it seemes this covenant shall not be taken to enable the lessee to make estates for a longer time then his estate will beare If the lessee covenant with the lessor that if the lessee be minded That if the lessee sell the lessor shall have the first refusall Dier 13. to sell his estate the lessor shall have the first refusall in this case when the lessee is minded to sell he need doe no more but acquaint the lessor with his purpose and know his mind and if he doe not answer him presently he may sell it to whom he will And if the covenant be further that the lessor shall give as much as another will the lessee must tell him what another doth offer him and aske him whether he will give so much and if he refuse or doe not accept it presently the lessee may sell to whom he will If one covenant to serve me a year and I covenant to pay him To doe one thing for another Co. super Lit. 204. Dier 371. Mich. 7 Jac. Co. B. tenne pound for it in this case albeit he doe not serve me yet I must pay him the tenne pound But if I covenant with him to pay him tenne pound if he serve me a yeare contra for in this case I am not bound to pay him the money unlesse he serve me a yeare So if one covenant to make new pales so as he may have the old in this case it seemes he is not bound to make the new pales unlesse he may have the old pales So if one covenant to pay money for service counsell or the like or covenant to mary ones daughter or make an estate and the covenant is penned conditionally and so as one thing is the cause of another and it is not set downe by mutuall and reciprocall covenants in all these cases if the cause or condition be not observed the covenant shall not be performed If one make a lease for tenne years and covenant that if the lessee Co. 1. 144. That the lessee shal have the fee. pay him tenne pound within the tenne years that he shall have the see simple and the lessee surrender his estate within the time in this case if the lessee pay the money the lessor is bound to make the fee simple to him But if the words of the covenant be that if he pay him tenne pound within the terme he shall have fee and the lessee surrender his terme and then pay the tenne pound in this case the lessor is not bound to make the fee simple for it was not paid within the terme If one covenant to doe a thing to I S or his assignes or to I S 27 H. 8. 2. Assignes and his assignes by a day and before the day I S die in this case it must be done to his assignes if he before the day name any assignee and if he doe not it must be done to his executor or administrator which is an assignee in law See more in Condition Num. 8. Obligation 7. If one be seised of land in fee or possessed of a terme of years Dier 303. Co. 9. 60. 7. When a Covenant in Deed or Law shall be said to be broken And when not And how and he doth alien it and supposing he hath a good estate he doth covenant that he is lawfully seised or possessed or that he hath a good estate or that he is able to make such an alienation c. and in truth he hath not but some other hath an estate in it before in this case the covenant is broken as soone as it is made * Adjudge Sir Perall Brocas case 32. Q. And if I
doe any thing against them By this release also of all actions a debt due to be paid upon a statute or an obligation at a day to come albeit the release be before the day is discharged and by this also the statute it self if it be at any time before execution is discharged And if one be to pay forty pound at four days and some of the days are past and some to come and the debtee make such a release by this the whole debt is discharged Also in a Scire facias upon a Fine or a Judgement this release is a good plea in bar But this release of all actions will not discharge Executions or bar a man of taking out of Executions except it be where it must bee done by Scire facias Neither will it discharge or bar a man of suits by Audita Querela or writ of Error to reverse an erroneous judgement neither will it discharge covenants before they be broken nor will it discharge any thing for which the relessor had no cause of action at the time of the release made as if a woman have title of dower and doe release all actions to him that hath the reversion of the land after an estate for life or a man is by an award to pay me ten pound at a day to come and before the time I make such a release or I make a lease rendring rent or an annuity is granted to me and before the rent-day I make the lessee or the grantor such a release in these cases and by a release in these words without more the dower debt rent or annuity is not discharged And if a man have two remedies or means to come by land Lit. sect 496 497. as action and entry or by goods as action and seisure or the like in this case by a release of all actions he doth not barre himself of the other remedy Et sic è converso And if a man doth covenant to build an house or make an estate and before the covenant broken the covenantee doth release unto him all actions by this the covenant it self is not discharged And yet after the covenant is broken this release will Co. super Lit. 292. discharge the action of covenant given upon that breach By a release of all a mans right into any lands or tenements Of all right Co. 8. 151. Plow 484. 6 H. 7. 8. Co. 3. 29. 6. 1. super Lit. 345. without more words is released and discharged all manner of rights of action and entry the relessor hath to in or against the land for there is jus recuperandi prosequendi intrandi habendi retinendi percipiendi possidendi and all these rights whether they accrue by fine feoffment descent or otherwise are extinct and discharged so that if the relessee have gotten into the land of the relessor by wrong by this release the wrong is discharged and the relessee is in the land by good title Also by this release are discharged and released all titles of dower and titles of entry upon a condition or alienation in mortmain And if a woman have title of dower after an estate for life and make such a release to him in reversion this doth barre her By such a release also from the Lord to the tenant the services are extinct But this release will not bar a man of a possibility of a right Co. 10. 47. super Lit. 289. that he hath at the time of the release or of a right that shall descend to him afterwards And therefore if the conusee of a statute before Execution release all his right into the land to the terretenant or the heir of the disseisee in the life-time of his father doe release to to the disseisor all his right these releases doe not bar them Nor will this release bar a man of an Audita Querela and such like things And yet if the tenant in a reall action after the demandant hath recovered the land release to him all his right in the land this doth bar him of a writ of Errour for any errour in the proceeding in that suit And if there be Lord and tenant by fealty and rent and the Co. super Lit. 150. Dier 157. Lord by his deed reciting the tenure doth release all his right in the land saving his said rent by this release the right of the seigniory save only of the seigniory of the rent and fealty is extinct And if the Lord release to his tenant all his right to the land and seigniory salvo sibi dominio suo c. hereby the services only not the tenure is extinct And if one have a rent-charge out of my land and make such Perk. Sect. 644. a release of all his right to the land to me that am the terretenant without exception of the rent hereby the rent is extinct and gone for ever By a release of all a mans title into lands or tenements without Kelw. 484. 6 7 8. Co. super Lit. 265. 345. more words is released and discharged as much as is released Of all title by the release of all a mans right and both these releases have the like operation for howsoever title strictly and properly is where a man hath lawfull cause of entry into lands whereof another is seised for which he can have no action yet it is commonly taken more largely and doth include a right also And Titulus est justa causa possidendi quod nostrum est By a release of all entries or rights of entry a man hath into Co. 8. 15â—â— Or entry or right of entry lands without more words a man is barred of all right or power of entry into those lands upon any right whatsoever And if a man have no other means to come by the land but by an entry and he hath released that by these words he is barred for ever But if one have a double remedy viz. a right of entry and an action to recover his right by and then release all entries by this he is not barred of his action By a release of all actions reall without more words are discharged Of actions reall Lit. sect 492 493. 495. Co. 8. 151. Lit. sect 115. 500. Co. super Lit. 288 289. all reall and mixt actions then depending and all causes of reall and mixt actions not depending And therefore all causes of suing of assises writs of Entry Quare Impedit actions of wast and the like which the party hath at the time of the release made are hereby discharged But this release will not bar him that doth make it of any causes of action that shall arise and accrue afterwards Neither will it bar him of an appeal of death or robbery writ of Error or any such like thing Nor of any thing which a release of all actions will not bar And yet when land is to be restored or recovered by judgement in a writ of Error this
behind or of which I owe him 10l Or memorandum that I A of B have received of C of D 20l. to be repaid him again Or memorandum that I A of B doe grant to owe or to pay C of D 20l. Or memorandum that I A of B doe promise to pay C of D 20l. Or memorandum that I A of B will pay to C of D 20l. Or memorandum that I A of B have had 20l. of the money of C of D. Or memorandum that I A of B have borrowed of C of D 20l. Or memorandum that I A of B doe bind my selfe to C of D that he shall receive of me 20l. all these and such like are good Obligations So if one say d Broo. Obligation 56. memorandum that I A of B bind my selfe to C of D that he shall receive 20l. by the hands of I S when K doth come to his house and at Michaelmas then next following 5l this is a good Obligation and the words by the hands of I D are voyd e Broo. Obâ—gation 1â— So if one bind himselfe thus Memorandum that I A of B owe to C of D 20l. for payment of which I bind my selfe and my goods this is a good Obligation and will bind the person but not his goods f Broo. Oâ—l 52. Dyer â— So if one by Deed covenant or promise to doe a thing and then useth these words Ad quam quidem promissionem perimplendam obligo me in 20l. this is a good Obligation for 20l. g Broo. Obl. 4â— So if one binde himselfe thus h Broo. Obl. 79. Memorandum that I A of B am bound to C of D to deliver him 20 quarters of corn by a day Ad quod performandum obligome without more words this is a good Obligation So if one binde himselfe thus Memorandum that I A of B bind my selfe to pay C of D 10l at Easter and if I faile to pay it them I do grant to pay him 20l. this is a good Obligation for the 20l. if he faile to pay the 10l i â—oxalls case 9. Iac. B. R. And some say he may recover both the 20l. and the 10l So if one bind himselfe thus k Foxe versus Wright â—â—n 40. Eliz. B. R. Memorandum that in consideration of a Bill of 50l wherein I S is bound for me to I D for payment of 20l. I doe bind my selfe in 20l. to the said I S to save him harmlesse from all Actions of the same this is a good Obligation and if I D â—ue I S the Bill is forseit Or if one bind himself thus Be it known c. Adiudged Pâ—â—t Woolwards case Mâ—â— â—9 H. in the Excheker Câ—â—ber that I A of B doe owe unto C of D the summe of 1â—l to be paid at the Feast of c. together with six pounds which I owe him upon Bils and Recognisances subscribed with my hand this is a good Bill but it is good for no more â—ut the 14l and not for the 6l for the words doe only import the time of payment of the 6l If one make a Writing in the form of a Statute which the party Trin. 17 El. B. R. Fitz. Accompt 79 doth seale and afterwards legally deliver but it is not sealed by the Kings and the Majors Seale according to the Statute albeit this be not a good Statute yet it may be a good Obligation Iâ— one bind himselfe to pay money or doe any other thing and Perk. Sect. 158. Fitz. Oblig 1. afterward doth adde this clause in the Deed Et ad majorem hujus rei securitatem inveni A de B C de D fidejussores quorum unusquisque Obligat se in toto in solid and these two doe also seale and deliver the Deed it seems this is a good Obligation to bind them albeit there be no other words in the Deed. If an Obligation be made to I D to the use of I S this is a good Obligation for I S in equity and some have said he may release it Broo. Obl. 72. Croâ—p Ier. 63. but this is much to be doubted for it is certaine I S cannot sue the Obligor in his own name but when he hath cause of Suit he may compell I D in Chancery to sue the Obligor If A of B bind himself to C of D to pay 20l. and say not when yet Brook Obl. 47. 14. H. 8. 29. 21 Ed. 3. â—â— 4. Ed. 4. 29. the Obligation is good and the mony is due presently So if the Obligation be Solvendum nunquam or solvendum at Doomsday the Obligations are good and the solvendum void and the mony is due presently So if A of B bind himself to C of D in 20l. Solvendum A de B where it should be solvendum C de D the Obligation is good and and the solvendum voyd If the Obligation be made thus Obligome c. leaving out these Dyer 13. Broo. Oblig 25. 68. words following haeredes executores administratores this is a good Obligation and the Executors and Administrators but not the Heir are bound by it And if it be made thus solvendum to the Obligee successoribus suis and not executoribus c. this is a good Obligation and the Executors and Administrators and not the Successors except it be in case of a Corporation shall take advantage of it An Obligation may be good albeit it containe false or incongruous Latin or English or Latin be put for English or è contraâ— if the intent Coo. 10. 233 Fitz. Obl. 12 2 H. 4. 14. of the parties may sufficiently appear And therefore if one be bound by the name of Iohannes for Iâ—hannem or one bind himselfe in octogenta for octoginta libris or in septungentis for septuagintis libris in wiginti for viginti libris in sewteene for seaventeene pounds in quinquegentis for quingentis libris l Adiudged Vernons case M. 13. Iac. Co. 1. in septuagessimo for septuaginta libris m Gâ—â—ies case 5. Iac. B. R. Mich. 10. Car. B. R. Adiudged sexingentis for sexcentris libris in quinquagessimis or quinque decies for quinquaginta libris in octogenta for octoginta libris or in viginti livers for viginti libris in vigiati nobilibus for 20 nobles n Fitz. hâ—gh â—res Bridges 3. 4. Eh. Co. P. or in octigenta libris for octogintalibris or quinginta libris for quinquaginta libris or the like these miâ—prisions will not hurt the Obligations for they are good notwithstanding But if one by the Obligation bind himselfe in in o Paris case M. 4. Iac. B. R. quinqueagentis libris or in quinqeagentis libris or in quinagentis libris or in segintis libris these Obligations are voyd for in these cases the meaning if so uncertaine that it cannot be discerned and no Averment will serve to supply it in this case p Trin. 21. Iac. Nowels case So if an
name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I enâ—eosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grantâ— corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be â—ipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Leaseâ— c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See inâ—â—â— in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise ofâ— the things a man hath in Iointure wiâ—h another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anothâ—â—s right Plow 525. B100 Administrator 7. 〈◊〉 Adm. 〈◊〉 goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof noâ— the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4â—6 49â— 49â— to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct â—t c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case Câ—o. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Preâ—entation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the 〈◊〉 devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage
thus And in these cases and by these meanes such persons that doe so intermeddle do make themselves to be accounted in Law Executors but Executors by wrong only and not Executors by right * Coo. 5. 34. Plow 148. 145. 33 H. 6. 31. And therefore such persons have not the favour nor power of lawfull Executors as to bring any Action for debt due to the deceased to deduct and pay themselves any debt due to themselves first of all and to barre other Creditors and the like * Dyer 210. Plow 184. Coo. 5. 33. And for so much as they have so disposed and mis-imployed and no more they make themselves chargeable to any Creditor or Legatee of the deceased that shall sue them as farre forth as a lawfull Executor is chargeable And albeit he that doth thus be a Creditor yet this will not help him for a Creditor may not enter upon the goods of the deceased and pay himselfe first and if he doe so if there be a lawfull Executor or Administrator made he may sue the Creditor and if there be no Executor or Administrator made the Creditor may by this meanes make himself chargeable to other Creditors as Executor of his own wrong for so much as he hath taken into his own hands And then a man shall be charged the Coo. 5. 33. Kelw. 59. rather in these cases and by this meanes when there is no Executor made or if there be an Executor made when he doth refuse to take upon him the Executorship nor any Administration granted for when a man dyeth Intestate and a stranger taketh and useth the goods of the deceased as his own albeit he pay no debt or Legacy nor doe any other act as Executor yet when no other man taketh upon him the administration this intermeddling shall make him chargeable as Executor of his own wrong for in that case the Creditor hath no other remedy But in case where there is an Executor made and he doth prove the Testament and doth take upon him the Administration of the goods and then a stranger taketh out of the hands of this Executor or getteth into his own hands all or some of the goods of the deceased and useth them as his own this will not make this stranger Executor of his own wrong for now there is a lawfull Executor against whom the Creditor may have his remedy and the Executor shall have his remedy for these goods against the stranger for they are and shall be accounted Assets in the hands of the Executor still notwithstanding the stranger hath the possession of them And yet in this case also where there is a rightfull Executor if a stranger shall take the goods into his hands claime to be Executor pay debts and Legacies and receive debts and intermeddle as an Executor in this case perhaps and by this expresse Administration as Executor he may bee charged as Executor of his own wrong albeit there be a lawfull Executor And if a man die Intestate and a stranger intermeddle with the estate as before and then the Administration is granted to another in this case the stranger may be charged by any Creditor or Legatee as Executor of his own wrong for his intermeddling before the Administration granted for the rightfull Executor or Administrator shall be charged with no more then what doth come into his hands And if an administration bee granted afterwards to any one that hath so intermeddled with the goods before this will not purge Pasche 〈◊〉 Eliz. Co. B. Bâ—adbury versus Reynolds the wrong done before and therefore in this case a Creditor may charge him as Executor of his own wrong or as a lawfull Administrator at his election The Administrator durante minori aetate is a speciall kinde of Administrator 34. Admininistrator durante minori aetate what he is and his power and when it shall end and is in case where an Infant under the age of 17 years Coo 5. 29. 6 27. 9. 27. for at that age an Infant is capable of an Executorship is made an executor and the Administration of the goods as the manner is in that case is committed to one or more of the next friend or friends of the Infant during his minority which is untill he be of the age of seventeen yeares he that hath such an administration granted unto him is such an Administrator And he is sometimes generall i. e. when his administration is granted unto him without any words of limitation and sometimes he is speciall i. e. when his administration is granted to him ad opus usum of the Infant only In the first case he hath as large a power as another administrator hath and therefore he may assent to a Legacy albeit there be not Assets to pay debts he may sell any of the goods or chattâ—ls of the deceased or give them away or the like as another administrator may doe But in the last case it is otherwise for such a speciall administrator can doe â—â—tle more then the Ordinary himselfe and therefore he may not sell any of the goods or chattels of the deceased except it be in case where they are like to perish for funerall expences or for payment of debts nor may he assent to a Legacy where there is not Assets to pay debts c. And this administration is ipso facto determined when the executor doth come to the age of seventeen years And therfore if it be granted during the minority of four Executors and one of them die or come to the age of seventeen yeares now is the administration determined And if the executor be a woman and she take a husband that is seventeen years of age or upwards in this case it seemes the administration is determined And therefore also it is that if such an administration durante minori aetate bee granted after the executor is seventeen yeares of age the administration is void It hath been held that the Ordinary after he hath granted the administration 35. Where an Administration once committed by the Ordinary may be afterwards revoked and what shall be said a Revocation of such an Administration or not and what acts done before shall stand in fores or not 4 H. 7. 14. Litt. Broo. Sect. 330. 34. H. 6. 14. Dâ—er 339. Broo. Administrator 7. of the goods of a man Intestate to another may afterwards without cause revoke the same and grant it to another at his pleasure and that if the Ordinary grant letters of administration to one and after grant letters of administration to another of the goods of the same man that hereby the second letters of administration are ipso facto countermanded albeit there be no words of Revocation in them * See the Stat. 21 H. 8. c. 5. Coo. 6. 18. New book of Entries 38. But it seemes the Law is otherwise and that after the Ordinary hath granted the administration according to the charge and direction given