or legally representing their Stocks pro suo cuique jure according to the Lawes in such Cases and in manner and form following That is to say one third part of the said Surplusage to the Wife of the Intestate and all the residue by equal Portions to and amongst the Children of such persons dying Intestate and such persons as legally represent such Children in case any of the said Children be then dead other than such Child or Children not being Heir at Law who shall have any Estate by the settlement of the Intestate or shall be advanced by the Intestate in his life-time by Portion or Portions equal to the share which shall by such distribution be allotted to the other Children to whom such distribution is to be made c. And the Heir at Law notwithstanding any Land that he shall have by descent or otherwise from the Intestate is to have an equal part in the distribution with the rest of the Children c. And in case there be no Children nor any Legal Representatives of them then one Moity of the said Estate to be allotted to the Wife of the Intestate the residue of the said Estate to be distributed equally to every of the next of Kindred of the Intestate who are in equal degree and those who legally represent them Provided that there be no Representations admitted among Collaterals after Brothers and Sisters Children And in case there be no Wife then all the said Estate to be distributed equally to and amongst the Children c. And no such distribution to be made till after one year after the Intestates death nor without sufficient security to be given by those to whom such distribution shall be made for refunding back to the Administrator according to each ones ratable proportion in case of the Intestates Debts afterwards sued for and recovered or otherwise duly made to appear For other Provisoes Rules and Limitations in the said late Act of Parliament the Reader is referred to the Statute it self there more at large Note An Administration cannot be revoked for the not bringing in of the Inventory and the Account of the Administrator And the Ordinary upon an Administration granted had not before the said Statute power to make any distribution of the Surplusage nor to take any Bond for to Answer the Surplusage by the true meaning of the Statute of 21 H. 8. which intends a benefit to the Administrator and not an unprofitable burden The Ordinary hath not power to make distribution of the Goods because there may be a Debt which was unknown and if he might distribute then the Administrator should be charged with the debt of his own Goods Vid. Briersley's Case Brown 1 Part. 31. acc Whether this were Law then is a needless question it being otherwise now by the Statute aforesaid CHAP. XXXIII Of Right to Administration 1. What the Method of Succession is by the Laws of this Realm 2. How the Civil Law understands it 3. The difference between the words Kindred and Consanguinity between Cognatos and Agnatos 4. Whether an Alien no Denizon may be an Administrator 5. Administration granted a Caveat depending is void in Law 1. BY the Law both by the Statute Lawes the Common Law and by the Civil Law the nearest of Kin to the deceased Intestate is to succeed in the Administration of his Goods As first to the Husband or Wife but if they fail then secondly to the Children whether Male or Female but if they fail then thirdly to the Parents whether Father or Mother but if they fail then fourthly to the Brothers or Sisters of the whole blood but if they fail then fifthly to the Brothers or Sisters of the half blood but if they fail then sixthly to the next of Kin as Uncles Aunts c. From these the Ordinary cannot grant the Administration to a Stranger if they seasonably require it and are not otherwise affected by some legal impediment but he may grant it to which of these he please if divers of them in equal degree do desire it yea to a Stranger if they neglect it 2. The Civil Law as to the Intestates Estate whether Real or Personal considers it all under the same Notion yea in this case it makes no distinction either of Ages or Sexes but all that are concern'd may challenge an equal proportion provided they be of equal degree and of identity in blood whether of the whole or of the half blood But the Wife was otherwise provided for by the Civil Law Therefore exempted from a Succession to the Goods of her Intestate Husband There are but Three Orders or Degrees chiefly of Kindred which the Civil Law doth specially take notice of The first is in the Right Line Descendent as Children Grand-Children and so downwards The Second is in the Right Line Ascendent as Parents Grand-Parents and so upwards The Third is in the Line Transversal or Collateral as Uncles Aunts Great-Uncles and so side-wards alwayes remembring that the whole blood is more worthy than the half blood and the nigher Degree more worthy than that which is more remote 3. Consanguineus or Consanguinity and Agnatus properly so called and strictly so taken doth comprehend only them that be of Kin by the Fathers Side Therefore the word Kin or Kindred is of a greater Latitude than Consanguinity because it comprizeth Cognatos as well as Agnatos and so comprehends all the Relations of both Lines both Male and Female for Cognati properly understood signifie only such as are the Mother-Side and of the Female Line And here Note that the most remote Agnati or Kindred of the Line Male in a Right Line Descendent are preferred before the nighest Kindred of the Female Line but it is otherwise in a Transversal or Collateral Line But as to Land in Fee or of Inheritance the Right thereof quasi ponderosum ever descends Downwards in a Right or Transversal Line and never doth Re-ascend the same way that it Descended by the Ancestors death yet it may Ascend à Latere or Sideward for want of Right Heirs in the Descendent Line which often happens 4. Suppose an Alien born and not made Denizon happen to dye Intestate within this Realm having Kindred born beyond Sea and others though more Remote born in this Realm In this Case an Alien may be Administrator and have Administration of Leases as well as of Personal Things because he hath them as an Executor in anothers Right and not to his own Use And he may be an Administrator as well as a person Out-Lawed or Attainted may be an Executor and no Prohibition will lye in this Case 5. An Administratrix Sued the Defendant in the Court of Chancery the Defendant shewed That before Administration was committed to the Plaintiff he had put in a Caveat in the Ecclesiastical Court hanging which Caveat the Plaintiff obtained Letters of Administration of which he demanded Judgement pendant the
England Two Witnesses without exception are requisite for the due Proof of a Testament and Two such are sufficient So that it is not necessary to have any more than Two and it may be in vain to have no more but One for a Nuncupative Testament must be proved by at least Two Witnesses without exception But 2. A Testament written by the Testators own hand Proves it self without the help of such Witnesses yea though it hath not his Name subscribed to it nor his Seal affixed to it nor witnesses present to it Provided it be undoubtedly known to be his writing or can be sufficiently proved so to be yet shall it have the more Authority if so be it be subscribed by himself and Witnesses and Sealed Nor is it necessary to the Proof of a written Will that the Witnesses hear it read or subscribe it so as they can depose that the Testator declared before them that the self-same writing now produced is was or should be his Last Will and Testament For in a written Will or Testament it is not necessary that there be any Testimony of Witnesses where it is certain and undoubted that the Testament is written or subscribed with the Testators own hand or that the Testator caused the same to be written by another but if these be doubtful then the testimony of Witnesses is necessary Also the Witnesses ought to prove the very identity of the writing that is that the writing now shewed is the very same writing which the Testator in his life-time affirmed before them to be his Last Will or to contain his Will or other words full to this purpose so that it is not sufficient for the Witnesses to say this is the Testators own hand for or because we know his hand neither is it sufficient by comparing other writings of the Testators own hand with the Testament for hands may be counterfeited therefore proof by similitude of hands is not full proof except where the style and practice of the Court runs otherwise Nevertheless if the Witnesses depose that they saw the Testator write or subscribe the Testament and know the same to be his Testament and Hand or that they had heard the Testator to confess that he had made his Testament and that the same was in such a mans Custody or if the Testament were found in the Testators Chest among other his writings in these Cases the proof made by comparing of hands is a full and sufficient proof yea though there appear not any of those helps by probable circumstances yet if there be no suspicion of fraud nor fear of subornation proof made by comparing of hands may be allowed for full and sufficient proof Likewise if it be proved that the Testator in his life-time did acknowledge that his Testament was contained in a writing left in such a mans hands or custody and that man produce a writing deposing it to be the same which the Testator left in his custody such proof is sufficient without any further comparing of hands But if the Testator did also acknowledge that his Testament contained in such a writing left in the custody of such a person was written with his own hand then such proof is not sufficient without comparing of hands whereby it may appear to have been written by the Testator himself 3. Regularly all persons are held competent Witnesses to prove a Controverted Will save such as the Law holds incompetent such are such as are parties interessed or presumed in Law to be byassed in affection or the like also infamous persons as perjured or the like also such as for want of judgement and understanding the Law rejects And if it cannot be proved whether it be a Testament or a Codicil the circumstances being so indifferent to either then is it most safe in regard of the Statute to commit the Administration to the Widow or next of Kin demanding the fame to avoid the forfeiture of Ten pounds in case the Judge before whom such penalty is demandable should adjudge the party to have died Intestate or without a Will 4. A Legatary may be a competent witness for the proof of a Will in all parts thereof saving for what concerns the Legacy therein bequeathed to himself So that suppose never so many Witnesses to a Will wherein each of them hath a Legacy they cannot sufficiently prove the Will as to their own Legacies but for the rest of the Will they may 5. It is very observable that the most considerable Requisite the Law aimes at to the constituting of an Executor and making of a Testament is to be proved more by Circumstances than by Witnesses and that is Animus Testandi or the intent or purpose of the Testator to make his Will For it is the mind purpose and intent of the Testator more than his words that giveth life and being to the Testament The circumstances that prove the intent or purpose must also themselves be proved by Witnesses These Circumstances proving such a purpose in the Testator are many as when the Testator is in any more than ordinary danger of death or that he orderly composeth himself for such a work or that he required the Witnesses to bear witness thereof with many other the like circumstances as to the person time place occasion manner of speech deportment and in whose presence All which the circumspect Judge is to take into consideration for since the mind and intention of the Testator is the essential qualification of every Testament and not capable of a Being otherwise than by such intention and the mind and intention of man not so much as conjecturable otherwise than by outward circumstances it is most necessary that they fall under a due proof by sufficient Witnesses CHAP. XXII Bona Notabilia 1. What shall be accounted as Bona Notabilia 2. Where the Will is to be Proved in case there be Bona Notabilia 3. How or when Debts and Bonds may make Bona Notabilia 4. Law-Cases touching this Subject 1. IT is agreed by all that Five Pounds is the summ or value of Bona Notabilia provided that where by composition or custome in any County Bona Notabilia are rated at a greater summ the same is to continue unaltered as in the Diocess of London it is Ten Pounds by composition Provided also that if any man die in itinere or in a journey the Goods that he hath then about him or with him shall not be as Bona Notabilia to cause Administration to be committed or the Will to be Proved in the Prerogative Nor is it necessary that the party must have five pounds in each and every of the several Counties where his Goods are dispersed but it is sufficient if the party deceased were possessed of Goods and Chattels in some other County than that wherein he lived and
ought in this Case the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee unless the condition were that the Feoffor pay to the Feoffee or to his Heirs such a summ of money at such a day Here note That the Executors do more represent the person of the Testator than the Heir doth the person of the Ancestor for though the Executor be not named yet the Law appoints him to receive the money but not so the Heir unless he be named Here also note That if the Condition upon the Mortgage be to pay the Mortgagee or his Heirs the money and before the day of payment the Mortgagee dieth the Feoffor cannot in this Case pay the money to the Executors of the Mortgagee But if the Condition be to pay the money to the Feoffee his Heirs or Executors then the Feoffor hath election to pay it either to the Heir or Executors 2. If a man make a Feoffment in Fee upon Condition that the Feoffee shall pay to the Feoffor his Heirs or Assigns Twenty pound at such a day and before the day the Feoffor makes his Executors and dieth the Feoffee may as aforesaid pay the same either to the Heir or to the Executors for they are the Feoffors Assigns to this intent But if a man make a Feoffment in Fee upon Condition that if the Feoffor pay to the Feoffee his Heirs or Assigns Twenty pounds before such a Feast and before the Feast the Feoffee maketh his Executors and dieth the Feoffor ought to pay the money to the Heir and not to the Executors for the Executors in this Case are no Assigns in Law And the reason of this difference is for that in the first Case the Law must of necessity find out Assigns because there cannot be any Assignes in Deed for the Feoffor hath but a bare Condition and no Estate in the Land which he can assign over but in the other Case the Feoffee hath an Estate in the Land which he may Assign over And where there may be Assignes in Deed the Law shall never seek out or appoint Assignes in Law CHAP. XIX Touching the Executors Election to accept or refuse the Executorship 1. Of the Judges Power to affix the time for that Election or in Case of the Executors refusal what his Power is 2. In what Case a person may be compell'd to accept the Executorship notwithstanding his Judicial refusal 3. How one appointed Executor by the Will may Administer notwithstanding his refusal to Prove the same 1. HE that is appointed Executor in a Will may be summoned to appear before the Judge of the Jurisdiction to accept or refuse the Executorship The time wherein he that is named Executor in the Testament is to deliberate and determine whether he will accept or refuse the Executorship is uncertain and left to the discretion of the Judge who hath used at his pleasure and when he will not only within the year but within a moneth or two to Cite him that is named Executor to accept or refuse the Executorship and upon the non-appearance or refusal of such Executor to Prove the Will the Judge may commit Administration as of an Intestate And such Administrators Power is effectual in Law untill the Executor undertake the Executorship For then the Judge may revoke such Administration But if the Judge knowing that there is a Will grant Administration not having first called the Executor to accept or refuse the Executorship the Executor when he shall have Proved the Will may Sue such Administrator in an Action of Thespass Because the Judge hath no power to grant Administration but in Case of Intestation or that the persons named Executors either will not or cannot be Executors 2. No man can be compell'd to accept the Executorship unless he hath already intermedled with the Testators Goods as Executor for then it is too late for him to refuse Yet if any Legacy be given him in the Will wherein he is named Executor he may then be compelled to accept the Executorship or he shall lose his Legacy Yea though he were of Kin or Allied to the Testator Yet the Wife shall not lose her Thirds nor the Children their Filial Portions by refusing the Executorship 3. Although where an Executor hath Administred he cannot afterward refuse because he hath thereby determined his Election and although where there is an Executor and he refuse or many and all refuse the party is dead as Intestate and Administration is to be committed with the Will annexed yet in case there be divers Executors viz. A. B. C. and A. only refuse and the Will be Proved by the other Two there A. continueth an Executor notwithstanding his refusal so as he may still release debts of the Testator and debts owing by the Testator may be released to him Yea if Sute be to be had by or against the Executors it shall not be in the Names of B. and C. only but A. also must be Named as a Plaintiff or Defendant or else the Action may be overthrown Yea this Executor which refused may afterwards Administer at his pleasure and intermeddle with the Goods as well as the others but after their death he cannot so do for then the Executor of him that Proved the Will is only to Administer and the others refusal continuing to the death of his Co-Executor his Power then died also with him but so long as the one Co-Executor liveth that Proved the Will the other though he refused the Executorship before the Judge may yet afterwards so long as the other lives Administer the Goods or Remit the Debts due to the Testator And that Co-Executor that so Proved the Will cannot hinder him nor can he Recover against the persons by him so released Trespass It was found by Verdict That Sir Ralph Rowlet being possess'd of a Term made his Last Will and thereof made the Lord Keeper Bacon Catlin Chief Justice and others his Executors and Devised the Term to the Lord Catlin and died All the Executors wrote a Letter to Dr. Dale Judge of the Prerogative Court That they could not intend the Execution of the Will and desired him to commit the Administration to Henry Goodyer the next Kin of the Testator The Administration was accordingly granted but the Register Entered the Cause viz. For that the Executors did defer suscipere onus Testamenti After this Catlin Entered upon the Land Devised to him and granted it over the doubt was whether this Grant were good 1. Whether the Letter were a sufficient Renunciation 2. Whether if they once refuse they may after Administration granted Administer at their pleasure Dr. Ford declared to the Justices That by the Civil Law a Renouncing may be as well by matter in Fact as by a Judicial Act and they may refuse
his Suit is in anothers right viz. the Testators But he that is Excommunicate cannot proceed in Sute as Executor yet this Excommunication pleaded doth not abate or overthrow the Sute but makes that the Defendant may stay from answering his Sute until the Plaintiff be absolved and discharged from his Excommunication 5. Although one Co-Executor cannot Sue another for possession of the Testators Goods for that many Executors to the same Testator are but as one man and no man can Sue himself So that when the Testator doth make divers Executors if any one of them doth get the Goods or the possession of the Goods of the Testator the other Executor hath no Action for recovery of the same Goods or any part thereof for the said Reason that one Co-Executor cannot Sue another nevertheless if the Testator make divers Executors and do bequeath to the one of them the residue of his Goods it is not only lawful for him to whom they are so bequeathed to retain the same but also if the other Executor enter thereunto he is subject to an Action of Trespass Also if the Executor of a Co-Executor have any Goods belonging to the first Testator the other surviving Co-Executor of the first Testator may have an Action against the Executor of that deceased Co-Executor for the same Also if there be Two Administrations granted together he that is the rightful Executor or Administrator may Sue the wrongful Administrator for the Goods in his custody 6. Executors may not Sue for the Goods of their Testators in the Court Ecclesiastical but at the Common Law Yet in some Cases an Executor may Sue in the Ecclesiastical Court as touching his Testators Goods as when a man bequeathes Corn growing or Goods unto one and a stranger will not suffer the Executor to perform the Testament for this Legacy he may Sue the Stranger in the Ecclesiastical Court But if a man take from an Executor Goods bequeathed for this the Executor must Sue his Action of Trespass and not Sue in the Ecclesiastical Court Also Tenants may be Sued but at the Common Law by Executors or Administrators for Rents behind and due to the Testator in his life-time or at the time of his death and may for the same distrain the Land charged with the Rent 7. A Woman and another person were made Executors the Woman took Husband who did not alter the property of the Goods of the Testator and then the Wife died it was adjudged That the other Executor might have an Action of Detinue against the Husband for the same Goods Debt brought by an Executor as due to his Testator and Judgment given for him but before Execution the Plaintiff died Intestate and the Ordinary committed Administration of the Goods of the first Testator to another who Sued out a Scire Facias on the Judgement All the Justices agreed That the Scire Facias did not lye For that when the Executor died Intestate the Testator was dead Intestate also whereby the Judgement and Recovery was void Detinue brought by an Executrix against her own Husbands Executor the Case was this One Falconer who was the Plaintiffs first Husband made his Will gave divers Legacies and towards the end of his said Will said The Residue of all my Goods I Give and Bequeath to Frances my Wife whom I make my full and whole Executrix of this my Last Will and Testament to dispose for the wealth of my Soul and to pay my Debts and died indebted to divers persons to whom the said Frances paid the said Debts and all the Legacies having then Goods in her hand for which this Action was now brought she having after married one John Hunks who made the Defendant his Executor to whose hands the said Goods came Whereupon the Court demurred and Judgement was that the Plaintiff should recover for notwithstanding the Devise viz. of the Residue as aforesaid she hath them not as a Devisee but as Executrix because the words of the Devise can have no other intendment than that she should enjoy them as Executrix Debt brought by the Executrix of J. T. against W. B. The Case was this The said W. B. caused a Writing to be made and sealed which he delivered to V. C. to deliver to J. T. as his Act and Deed Accordingly the said V. C. offered the same to the said J. T. as the Act and Deed of the said W. B. But he utterly refused to receive the same as such notwithstanding which the said V. C. there left the said writing which matter the Defendant pleaded and said it was none of his Act whereupon was a demur and Judgement given for the Plaintiff Debt upon an Obligation Conditioned That if the Defendant in Michael Term then next ensuing in the Prerogative Court of the Arch-Bishop of Canterbury at London should give to D. his Executors or Administrators such a Release and Discharge from and against him and his Children for the receipt of One Hundred Marks as by the Judge of the Court should be thought meet That then c. The Defendant pleaded that the same Term one S. was Judge there and that the said Judge did not Devise or Appoint any Release or Discharge c. And it was thereupon demurred and adjudged to be no Plea For that it is not alleadged that he caused a Release to be drawn and tendered to the Judge to be allowed for it is on his part in discharge of his Obligation to draw such a Release as the Judge should allow Wherefore it was adjudged for the Plaintiff 5. Co. 23. b. Mich. 43 44. C. B. Pl. 42. Debt as Administrator to B. upon an Obligation The Defendant pleaded That the Plaintiff was an Alien under the Obedience of Philip King of Spain Enemies to our Soveraign the Queen and demands Judgement whether he should be Answered and it was demurred thereupon and adjudged that he should Answer Assumpsit By an Executor of a Promise made to his Testator The Defendant pleads non Assumpsit and found for the Plaintiff and Judgement for him And Errour was thereof brought and Assigned because he did not shew in Court the Testament in the Declaration mentioned Whereunto it was said That it was but default of Form which is aided after Verdict but all the Court held it to be matter of substance for otherwise he doth not entitle himself to the Action without shewing the Testament For which cause it was Reversed Debt upon a Special Verdict the Case was A Parson made a Lease for years rendring Rent at Michaelmas or within a moneth next after The Lessee Enters the Lessor dies within ten dayes after Michaelmas Whether his Executor hath any remedy for this Rent was the Question and Ruled that he had not for the Rent was not due in the Testators time nor until the end of the moneth And in such Case it hath been adjudged that such
from the deceased 4. If an Executor Sued do plead that he never was Executor nor Administred as Executor for that must be added then if Issue be taken upon this Plea and it be found against him the Plaintiff shall have Judgement to Recover not Dammages only but the Debt it self out of the proper Goods of the Executor if none of the Testators can be found Likewise as it is frequent in use for Executors to pay the Testators Debt with their own monies and to make themselves satisfaction out of the Testators Goods So it is most equal that Executors should with their own money discharge the Arrerages of Rent of those Leases the Profits whereof themselves enjoy by vertue of the Testators Will Therefore where an Executor is sued for Rent behind after the Testators death upon a Lease for years made to the Testator and by him left to the Executor here it shall be adjudged and levied upon the Executors own Goods for that so much of the profits as the Rent amounted unto shall be accounted as his own Goods and not his Testators Again if Executors plead Plene Administra and it be found for them and after that certain Goods of the Testator come to their hands in this Case if he which brought the first Action of Debt bring the same against them again the Action is well maintainable It is also to be remembred That the value upon an Appreyzment in an Inventory is not binding nor much to be regarded at the Common Law either for or against Executors for if it be too high it shall not prejudice the Executor if it be too low it shall not advantage him but the very true value as shall be found by the Jury when it comes in question whether the Executor hath fully Administred or hath Assets in his hands or not is that which is binding in the Law 5. Executors are lyable to satisfie the Obligations made by their Testators though they be not therein bound by Name Also an Action of the Case lyeth against an Executor upon an Assumpsit or the simple contract of the Testator especially where the ground of the Assumpsit is a true and real debt Also the Rationabilis pars bonorum by Custome in some places is maintainable for the Widow and Children against the Executors Also a Detinue lyeth against him for the Goods delivered to the deceased if the Executor doth still continue the possession of them Likewise an Action lyeth against the Executor for arrerages of account found upon the deceased before Auditors Also the Executor of a man that recovereth a Debt upon a Judgement had by the deceased shall be chargeable with restitution if the Judgement be reversed for Errour Also where a Prisoner dyeth in debt to a Goaler for his diet during the time of his imprisonment his Executor is lyable Likewise where one hath a Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Kings and delivereth it to him he then having money of the Kings in his hands if he dye without paying the same his Executor shall stand chargeable with the payment thereof Also the Executors of an Administrator are chargeable where he did neither pay the Debts nor leave the Goods of the Intestate to the next Administrator but otherwise disposed of them Yet an Executor is not chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge 6. But an Executor as hath been formerly implyed is not chargeable for any personal wrong done by the deceased for it dies with his person neither will an Action of Debt lye against him upon the simple Contract of the deceased but an Action of the Case only Neither will an Action lye against an Executor upon an Arbitrement made in the life-time of the deceased albeit it be made in writing Neither will an Action lye against an Executor for Costs given in Chancery against the deceased in a Sute there for it is lost when the party dies And where there be many Executors and all have accepted they must all be joyned in the Sute but if some of them have refused possibly the Sute may be good enough against the rest Otherwise one Executor cannot be charged without his Co-Executors except it be in the Case of Severance and in some special Case where one alone doth the wrong as where one Executor doth detain the Deeds from the Heir 7. Debt brought against the Executor of H. W. The Defendant pleaded That he never was Executor nor Administred as Executor The Jury found That the said H. W. died possessed of divers Goods and that one W. A. was indebted Seven Pound to him which theâ— Defendant had received and for which he had given his Acquittance and that immediately after the death of the said H. W. the Defendant took into his possession all his Goods converted them to his own use enjoy'd them and disposed of them to his own profit at his own will and pleasure And whether upon this matter of Fact the Defendant were Executor or not was submitted to the Court who were of Opinion That this matter of Fact was the Administration as of an Executor and that the Defendant should be charged accordingly Scire Facias upon a Judgement against a Testator in Debt brought against his Executors who pleaded That before they had knowledge of this Judgement they had fully Administred all the Testators Goods in payment of Debts upon Obligations It was adjudged no Plea for at their peril they ought to take knowledge of Debts upon Record and ought first of all unless Debts due to the Queen to have satisfied them It was adjudged accordingly Debt was brought by S. B. against D. B. and others Defendants Executors c. The Defendants pleaded Recovery against them by another in an Action of Debt and shewed the Contents of the Record to which it was Replyed That the Recovery was by Covin to defraud the Plaintiff of his Debt and hereupon Issue was joyned it was found by Verdict for the Plaintiff and agreed by all the Justices That the Judgement should be against the Executor as against the Testators Goods and not as against his own proper Goods being hereunto upon good Advice inclined for several Reasons 1. For that the Plea was a void Plea for the Record which the Defendant pleaded was such as the Plaintiff doth confess and avoid and not like that which is every way false as when one pleads that he never was Executor nor Administred as Executor c. which Plea being every way false and so within his own knowledge also doth for that Reason cause that Judgement in that Case shall be of his own proper Goods 2. Another Reason is That because such Judgement is most agreeable to Reason viz. To give the Plaintiff Recovery of his
because the presumption of Law is That his mind is not altered unless it may otherwise appear by sufficient Evidence Therefore the Testators words are specially to be referr'd to the Time when the Testament was made and most especially if the Testators words be generall words So that if a Father bequeath to his Son who is a Student all his Books and after buy other Books those other pass not by that Legacy Or if he bequeath 10 l. to his Parish Church and after remove his Habitation into another Parish where he dyes the 10 l. is due to the Parish wherein he lived at the time of making his Testament and not to the Parish wherein he dyed Yet if the Testator bequeath any thing to his Kindred in such general words the Kindred which were at the time when the Testament was made are not so included as to exclude such as were his Kindred at the time of his death Also if a Testator bequeath his Moveables such only are understood to be bequeathed as were the Testators when he made his Testament Likewise if the Testator Bequeath Releases to all his Debtors there are no more comprehended in that Legacy then were his Debtors when he made his Testament Or if he give to a certain Hospital all his Moneys in the Bank or in Bankers hands after his Debts paid and there be at that time a 1000 l. in their hands over and above his Debts and he lives so long that at his death there is 3000 l. in their hands above his Debts In this case there is only one 1000 l. due by that Legacy to the Hospital because the Legacy is to be computed according to what he had in their hands at the time of making his Will and not according to what he had at the time of his decease Also if he Bequeath all his Moveables having at that time Fruits of the Earth not seperated from the Soyl which yet afterwards and before his death are seperated In such case such Moveables pass not by that Bequest because they were not Moveables at the time of making the Testament But this is not uncontrovertable for in this point there are some of the Learned of another Opinion Or if a Man Bequeath so many pieces of such a certain Coyn which afterwards doth rise or fall in its value The Legacy in that case shall be estimated as the said Coyn was in value at the time when the Testament was made not at more nor less Also if a House with all things therein be Bequeathed such things as the Testator afterwards brings into that House are not within that Legacie And here observe That what has been said as to the Time of making the Testament holds True likewise and so is to be understood as to the time of making a Codicil the words whereof are chiefly to be referr'd to the time of the making thereof Insomuch that in case by way of Codicil a man Bequeath all his wearing Apparel to his Wife and after some Tract of Time makes a Will and dyes no more Apparel doth pass by that Codicil supposing it not contradicted by the Will then the Testator had when he made that Codicil And yet notwithstanding all this which hath been said that the Time of the making of the Testament is chiefly and specially to be referr'd to in the due Construction of Legacies yet this is to be understood only when the words of the Testator speak of the time Past or Present Not when he speaks of the time to come by words of the Future Tense Nor when he speaks by such words of the Present Tense as cannot take effect but for the future Also when the Legacy is Universal under some Name Appellative and in its Nature Collective as Herd Flock and the like such a Legacie admitting of Increase and Decrease the Time in that case of the Testators death is more to be inspected and considered then the Time when he made the Testament So likewise if the Testator willeth that such a one shall dispose of the Profits of his Estate it shall be understood of such Profits thereof as were at the Time of his death because the word Profits is universal and therefore not to be restrained only to the time of the making of the Testament Or if he Bequeath his Money in the Bank the Profits thereof at the time of his death shall pass by this Legacy which if you observe it differs from that Case of money in the Bank abovesaid also if the thing Bequeathed be such as is in ordinary use and by using is consumed and another of like kind had instead thereof That other shall pass by this Legacy for in such case not the Time of making the Testament but the Time of the Testators death shall be considered Nor is the Time of the Testaments making so considerable when the Legacy is Conditional for then the performance of the Condition will fall under chiefest Consideration Also the Time of the Testators death when it most tends to the upholding of the Testament is more considerable then the Time of the making thereof And therefore though the words in the Testament be of the Time Past or Present yet in that the Will of the Testator holds free and good even to his last-Breath They shall also Refer to the Future in those things that depend on the meer Will of the Testator And if he Bequeath indefinitely his Corn it shall be understood all such as he hath at the time of his death Observe finally That if the Testators words in a Bequest be doubtful whether they Refer to the Time Past or to the Time to Come they shall be understood to relate unto the time that is to come 4. Where a Devise is made of Goods if the Executor will not Deliver the same to the Devisee he hath no Remedy by the Common Law but must have recourse against him by way of Citation out of the Ecclesiastical Court to appear before the Ordinary to shew cause why he performeth not the Testators Will for the Devisee may not take the Legacy and serve himself but it must be Delivered to him by the Executor So that the Legatary hath no Remedy by the Common Law for any Legacy of Goods to him bequeathed except as that Law sayes in case where some particular thing as the Testators Horse Signet or the like is bequeathed Or if the Testator willeth that his Executors shall sell his Land and pay such and such Legacies out of the Proceed of the Sale thereof in such case the Legatories may Sue at the Common Law for the same But if the Legacies be Bequeathed to be paid out of Leases and not out of Fee-simple Lands then the Legatary may likewise Sue in the Ecclesiastical Court for the same For though Legacies
Appeal It is a good Cause to stay the Sute until the Appeal shall be determined In this Case it was also said That the same was not like unto a Writ of Errour for by the purchasing of a Writ of Errour the Judgement is not impeached until the Record be Reversed But the very bringing of an Appeal is a suspension of the first Judgement for the principal matter If an Executor dye Intestate Administration ought to be granted of the first Testator for now he is dead Intestate 21 Ed. 4. 24. 26 H. 8. 7. But if an Executor after Administration dye Intestate and the Ordinary grant Administration of all the Goods of the Executor he may Administer the Goods of the first Testator 10 Ed. 4. 1. Quaere if an Administrator doth make an Executor and dies his Executor shall not have the Administration of these Goods but a new Administration ought to be granted of them 34 H. 6. 14. D. 32 H. 8. 47. 11. Co. 5. Brud 9. b. Adjudged And if an Executor before Probate of his Testators Will doth make his Executor and dye the Executors Executor cannot take upon him the Execution of the first Testament but Administration of the first Testators Goods is to be granted cum Testamento annexo D. 22 23 Eliz. 372. 8. CHAP. XXXIV Of Succession in the Right Line Descendent 1. What the Jus Repraesentationis is or that several Children by one Father deceased do Conjunctim represent the Person of that Father 2. That Succession when the Case so requires is to be computed in Stirpes not in Capita 3. That the Grand-Child living the Father succeeds not to the Grand-Father nor by the Civil Law if conceived after his Grand-Fathers death 4. How the Succession according to the Civil Law is in Case of Children not all of them by the self-same Parents and how at Common Law 1. NExt to the Widow this Right of Succession in the Right Line descendent is the first degree of Right to the Administration of an Intestates Goods for they are in the first place admissable to such Administration who are of the Right Line descendent from the deceased So that if a man dye Intestate leaving behind him Children Parents and Collateral Kindred the Children do in the first place Succeed as to the Goods whereof he died Intestate exclusively to the Grand-Children whose Parents are living It is otherwise if their Parents be dead for if a man dye leaving one Son and one or more Grand-Children by another Son deceased these Grand-Children are Admissable together with that living Son their Uncle And this is Jure Repraesentationis whereby several Children of one Father do Conjunctim represent the Person of that Father But yet this must be understood according to the Law-Terms not in Capita but in Stirpes only that is not according to the several Branches or by Poll as we use to say but according to the one Common Root of those several Branches and therefore put all the Grand-children together they can have no greater proportion among them all than singly belonged to their Father were he then alive So that in the foresaid case the Estate is to be divided into Two equal parts whereof one Moity is due to the Son the other Moity to the Grand-children to be equally divided amongst them And this Right or Law of Representation holds in infinitum in the Right Line descendent contrary to the Opinion of the Famous Bartol who held that it reached not beyond the Great Grand-children 2. In like manner if there be divers Grand-children by divers Sons deceased and no Son living they succeed to their Grand-Father in Stirpes not in Capita that is as aforesaid not according to the distinct number of the several Grand-children but according to the number of their Fathers or Sons to the Intestate so that the Grand-children by each deceased Son to the Intestate shall Conjunctim and amongst them all respectively have just that proportion which their respective Fathers or Sons to the Intestate could challenge if they had been alive at the time of the Intestates decease so that Two Grand-children by one Son have no more than one Grand-child by another Son because the Son by whom are the Two Grand-children to the Intestate could have no more than the Son by whom there is but one Grand-child in case both the Sons had been living when the Intestate died Indeed if there be no Grand-children save only by one Son then they succeed equally according to their number unless they be in unequal degree as Grand-children and Great Grand-children And the reason why Succession goes in Stirpes not in Capita is because they succeed not in their own right but in the right of their Ancestor 3. A Grand-child whilst his Father is alive hath not the precedent right to the Administration of the Goods of his Grand-Father dying Intestate nor doth a Grand-child succeed to his Grand-Father unless he be born at least conceived at the time of his Grand-Fathers death So that a Grand-child conceived after his Grand-Fathers death is not in his own person by right of Representation according to the Civil Law Admissable to succeed his Grand-Father And that which hitherto hath been said of Sons and Grand-Sons holds true in Law as to Daughters and Grand-daughters who are equally with the other Admissable to a succession of their Intestate Parents Goods without any distinction of Sex 4. Whereas the Law is That Children shall succeed equally to the Administration of their Intestate Parents Goods this must be understood only of such Children as are begotten of the self-same Parents for if there be Children by divers Parents as if a Woman hath had Two Husbands and one Child by the First Two by the Second In this case each of them respectively succeeds according to the Civil Law only to the Goods of his own Father but all of them equally to their Mothers And this also by the same Law holds true as to the Grand-children by such Children of each marriage respectively Otherwise it is if a man hath had two Wives with Goods and Children by each of them and dye Intestate leaving no Relict or Widow for in this case all the Children by both Wives shall equally succeed to the Goods and Chattels of their Father dying Intestate In the case of a Prohibition granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half blood when there was a Brother of the whole blood who sued for them It was agreed by the Court That it is in the power of the Ordinary to grant Administration either to the Brother of the whole blood or to the Sister of the half blood at his Election because they are in equal degree of Kindred to the Intestate But if Administration be granted to the Husband and Wife where the Husband is not of Kin to the Intestate but a Stranger in such case if he survive his Wife