or Legatee but as Executrix by reason of these words viz. for the payment of his debts and for the wealth of his Soul And the Justices held That all works of Charity were within the Intent CHAP. XXVI Of a Devastavit or Wast in an Executor or Administrator 1. What a Devastavit or Wast is and in what Case the Writ of Devastaverunt doth lye 2. How many wayes a Devastavit or Wast may be committed 3. An Executor or Administrator in a Devastavit or Wast is chargeable de bonis Propriis 4. What Acts do not amount to a Wast also a Wast committed by one Co-Executor shall not charge another 5. The manner of Proceedings against Executors or Administrators in case of a Devastavit 1. A Devastavit or Wast in the Executor or Administrator is when he doth mis-administer the Goods and Chattels of the deceased or mis-manage that Trust which is reposed in him either by the Testator as to the Executor or by the Law as to the Administrator and therefore the Writ of Devastaverunt bona Testatoris lyeth against Executors for paying Legacies or Debts without Specialties to the prejudice of Creditors that have Specialties before the debts upon the said Specialties be due For in this Case the Executors are as lyable to an Action as if they had wasted the Goods of the Testator riotously or without cause Likewise the said Writ lyeth against Executors or Administrators when they deliver the Legacies given by the Testator or make Restitution for wrongs done by him or pay his debts due upon Contracts or other debts upon Specialties whose dayes of payment are not yet come c. and keep not sufficient in their hands to discharge those Debts upon Record or Specialties which they are compellable formerly by Law to satisfie or do deviate from that method or order enjoyned Executors by the Law in the payment of Debts and Legacies In such Cases they shall be constrained to pay of their own Goods those Duties which at the first by the Law they were compellable to pay according to the value of that which they delivered or paid by compulsion for such payment of Debts or delivery of Legacies as is aforesaid before Debts upon Record or Specialties whose dayes of payment are already come are accounted in the Law a wasting of the Goods of the deceased as much as if they had given them away without cause or sold them and converted them to their own use 2. From the Premises it is evident that a Devastavit or Wast may be committed several wayes more particularly thus viz. When more is expended about the Funerals of the deceased with respect had to his Estate and degree than is meet and fit when Executors pay Legacies in money or assent to Legacies given in other things before the Debts are paid not reserving sufficient to pay the Debts also when the Debts are not paid in that order and manner as the Law requires but payment is made of that first which should be paid last when there is not sufficient to pay all when the Executor gives a Release of a Debt or Duty due to the deceased before his Receit thereof when he Releases an Action whereby he might recover the deceaseds Goods or the value thereof when he sells the deceaseds Goods much under value specially if in a fraudulent way as to his near friends to his own use or to have money under hand or the like But be the appreyzment what it will and let the Testator sell for what he will he shall stand chargeable to the best and utmost value towards the Creditors but a Sheriffs sale of the Testators Goods upon an Execution at an under-value is no wast in the Executor If an Executor upon a Bond of Two hundred pound forfeited for non-payment of One hundred pound accept the Principal or Cost or Dammage and give a Release or Acquittance of the whole forfeited Bond or of all Actions or upon Record acknowledge satisfaction upon Judgement had this shall be a Devastavit or Wasting of so much as the penal summ is more than is received by him and so far his own Goods stand lyable to Creditors not satisfied And so doubtless is it if he do but give up the Bond having no Judgement upon it though he neither make a Release nor acknowledge satisfaction The Law is the same in Case of releasing of Trespasses or other causes of Action As if one take away Goods from the Testator or his Executor and he give a Release this is a Wast and makes his own Goods lyable Yet on the other side if an Executor by payment of Two hundred and forty pound or thereabouts get in a forfeited Bond of Five hundred pound it shall be an Administration but of Two hundred and forty pound or of no more than he really paid Also the Executors verbal agreement to require or sue for no more or his giving a Receit for so much as he hath received or delivering of the Bond into a Friends hands or into a Court of Equity by way of Security to the Debtor that he shall not be sued for more is no Devastation or Wast since that the rest in Law still remains as due and suable And upon the Issue of Plenè Administravit the Jury is to find whether the Executor hath Assets or not and not whether a Devastation for that must come in by the Sheriffs Return upon the Fieri Facias Again the Executors submitting to Arbitrement matters of Debt or Duty due to the Testator or touching his Goods taken away is another way of discharging dangerous to Executors for if it happen that by the Arbitrators Award the Trespassers or Debtors be discharged without full Recompence made the rest of the value will subject the Executors to the Creditors because it was their own voluntary act to submit to Arbitrators Or if an Executor allow a Writ to suffer Judgement to be had against him upon a Writ which is abatable he shall not have allowance of that but this shall be Return'd as a Devastavit Yea if money be paid by an Executor upon an usurious Contract it is a Devastavit And it was held by the Lord Hobard That if an Executor pay a Bond made upon an usurious Contract it shall be a Devastavit or Wast in the Executor 3. These and the like Acts are said to be a Devastavit or Wast in the Executor or Administrator which being discovered against him by the Sheriffs Return will charge him de bonis Propriis for so much as he hath so mis-administred insomuch that any Creditor may charge him for the Debt due to him from the Testator as for his own proper Debt and for so much Execution shall be made against him upon his own Body Lands and Goods Yea the Husband shall be charged in a Devastavit for the Wast of himself or his Wife where she is an Executrix whilst
Lease for years worth Fifty pound per annum or more out of which he payes Ten pound yearly Rent and dies in this Case not the full value of the Land yearly but only so much as is above the said Rent shall be deemed Assets in the hands of the Executor or Administrator Or suppose the deceased dies possessed of Goods and Chattels to the value of Two hundred pound and in debt to M. Two hundred pound and to N. One hundred pound and to O. Fifty pound and to P. Twenty pound and Composition is made with M. for Sixty pound or other Summ more or less under Two hundred pound In this Case the Executor is deemed to have Assets chargeable to the other Creditors for so much as is above the Summ so compounded unto Two hundred pound Or where a man is indebted Forty pound to one and Thirty pound to another and dies leaving but Forty pound in all and his Executors agree with the Creditor of Forty pound for Ten pound and have his Acquittance for the Forty pound yet the Thirty pound remaining in their hands shall be Assets 2. If Executors do Recover any Dammages for Trespass or other wrong done to the Testator the money recovered will be Assets in their hands as well as Debts recovered upon Bonds or Bills or Lands by them taken in extent upon Statutes Recognizances or Judgements Yea without ever having these monies Executors may make them Assets in their hands viz. by making Releases or Acquittances or Acknowledgement of Satisfaction for this amounteth to a Receit and chargeth the Executors towards the Creditors with the whole penal Summ though possibly they receive but part as the Principal or some such proportion But Debts or Dammages recovered by a Judgement had by the deceased in his life-time whereof no Execution was are not Assets in his Executors or Administrators hands until Execution be made yea though Execution be made and the Dammages so recovered that they be gotten into the Executors hands or possession yet if the Judgement be Erroneous and the Execution avoidable it shall not be deemed Assets in his hands for which Cause a Debt Sued and Recovered by one as Administrator to A. B. and afterwards a Testament made by A. B. produced and proved is not Assets in the Administrators hands because the Executor in the said Testament may recover it from him 3. A Mortgage Redeemed is Assets unless the Executors redeemed it with their own money Likewise Goods of the Testators redeemed by the Executor with the Testators money are Assets in the Executor it is otherwise if the Executor having no monies of the Testators doth redeem them with his own money If the Testator grant a Lease for years or Horses Sheep Plate or other Cattle unto A. upon some Condition that A. did not perform after the Testators death in this Case the Chattel reverts and comes back to the Testators Executors and is Assets in their hands Also if A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be Assets in his hands because the Executor shall have the Term only as Executor So if A. undertake to deliver in to B. Twenty loads of Coles Wood or other Merchandize whatsoever and this is not performed in the life of B. but afterwards to his Executor this shall be Assets in his hands as well as the money recovered in Dammages for non-performing should have been Likewise any Goods or Chattels whatsoever given or bequeathed to any person by the Testator upon a Condition certain and the Condition not afterwards performed by such Conditional Legatary the said Goods and Chattels conditionally bequeathed do revert to the Executor and become Assets in his hands 4. Encrease gotten to the Executors by Merchandizing with the Testators Goods shall be Assets in their hands and shall charge them Likewise Dammages recovered by an Executor in an Action of Trespass shall as aforesaid be Assets and yet they were never in the Testator Also if a Lease be made to one for life the Remainder to his Executors for years and he dieth this will be Assets in the hands of his Executors though it never were in the Testator So where a Lease for years is bequeathed to A. for life and after to B. who dieth before A. although B. never had this Term in him so as that he could grant or dispose it yet shall it rest in his Executor as his Goods and be Assets in his Executors hands Likewise a Remainder for years so in the Testator that he might grant or dispose it at his pleasure though the same fell not in possession to the Testator in his life-time yet this is Assets to the Executor even whilst it continues a Remainder and before it falleth into possession because it is presently valuable and vendible In like manner Gain gotten by Trading as aforesaid with the Testators money Wool growing upon Sheep after the Testators death also the encrease of Sheep or other Cattel after the Testators death though never in the Testators actual possession shall yet be Assets in the Executor Likewise a Feoffment made to the Feoffors use for life and after him to the use of his Executors or Assigns for a certain number of years that number of years shall be Assets in the hands of the Feoffors Executor Also Goods hypothecated or pledged to the deceased in his life-time and not redeemed or the money thereof when redeemed is Assets in the Executors or Administrators hands Likewise the money raised by the Sale of the deceaseds Lands sold by his appointment by the Executors for the payment of his debts as when the deceased did in his life-time appoint that his Executors shall sell his Lands to pay his debts shall as aforesaid be Assets in the Executors hands Also if Executors had a Villein for years and the Villein purchased Lands in Fee and the Executors entered they had a Fee-Simple but it was Assets The reason was because they had the Villein in auter droit viz. as Executors to the use of the dead And if Executors having Assets do wast it or pay Debts or Legacies in any other order or method than the Law hath prescribed they must answer it out of their own Estates 5. Debts due to the Testator be not Assets in the Testators hands so as to charge him for the payment of Debts and Legacies until Judgement and Execution had or they be otherwise recovered received or released by him And an Executor paying the just value of the Testators Goods to the Creditors may retain the same Goods in his hands which nevertheless shall not afterwards charge the Executor as Assets But if question be concerning the value it is received by all that the
Notabilia whereby the Arch-Bishop shall grant the Administration although the Lease for years be not a thing moveable nor properly Bonum but it is a Chattel according to Pleadings If a man becomes bound in an Obligation at London and dies Intestate in Devon and there hath the Obligation at the time of his death with him Administration ought to be granted by the Bishop of Exon where the Obligation was at the time of his death and not by the Bishop of London where the Obligation was made for the Debt shall be accounted Goods as to the granting of Letters of Administration where the Bond was at his death and not where it was made To make Bona Notabilia a Debt without specialty shall be accounted Goods where the Debtor lives and not where the Testator lived Likewise if a man dies Intestate having divers Debts or Obligations in several Diocesses the Debts are said to be Bona Notabilia where the Bonds or Obligations are and not where the Debtors or Debtees are If a man hath Goods to the value of Five Pound in one Diocess and a Bond or Obligation to a greater value in another Diocess the Obligation being there also made they are Bona Notabilia for which reason the Arch-Bishop shall grant Administration Anciently if a man died Intestate having Goods to the value of Forty Shillings in two Diocesses it should make the Goods to be Bona Notabilia whereby Administration should be granted by the Arch-Bishop But by a Canon 1 Jac. cap. 93. It is Ordained that Bona Notabilia shall be accounted to be Five Pound at least and that none shall be said to have Bona Notabilia unless he hath Goods in divers Diocesses to the value of Five Pound and so that Canon hath changed the Law if it were otherwise before Likewise in the said Canon there is an Exception of such Diocesses where by Custome or Composition Bona Notabilia are rated at a greater summ than Five Pound The Chapters of the Second PART I. Of the Appointing or Constituting Executors II. Of Conditional Executors III. Of appointing Co-executors IV. Of substitutions and appointing Executors by degrees V. Of the several wayes of Constituting Executors VI. Of persons incapable of being Executors or Administrators VII Of an Executors Executor VIII Of an Executor in his own wrong IX Of a Child in the Womb made Executor and of an Infant Executor as also of Executors and Administrators durante Minoritate X. Of a woman under Coverture made Executrix or making Executors XI Of Debtors and Creditors made Executors XII Of the general difference between an Executor and an Administrator and wherein they generally agree XIII Of the Executors Rights exclusively to the Heirs XIV Of the Heirs Rights exclusively to the Executors XV. What goes neither to the Heir nor Executor and in what Cases XVI Of the Indivisibility of the right and interest of Co-Executors XVII Of the Executors Interest and Possession and how it differs from that which he hath in his own proper Goods XVIII Of the Executors Right in opposition to the Heirs in reference to Mortgages XIX Touching the Executors Election to accept or refuse the Executorship XX. Touching what Acts may or may not be done by an Executor before Probate of the Will XXI Of Inventories XXII Of Actions mantainable by Executors or Administrators XXIII Of Actions maintainable against Executors or Administrators XXIV Of Assets charging Executors or not XXV Additionals to the three last Chapters touching how far and wherein Executors may be charged XXVI Of a Devastavit or Wast in an Executor or Administrator XXVII Of the Executors power in Sale of Lands devised to be sold XXVIII Of Debts Legacies and Mortuaries and the Executors method in payment thereof XXIX Of Executors Accounts XXX Of Administrators in a notion distinct from Executors XXXI Of Administrations fraudulent and revocable XXXII Of Filial Portions XXXIII Of Right to Administration XXXIV Of Succession in the Right Line Descendent XXXV Of Succession in the Right Line Ascendent XXXVI Of Succession in the Line Transversal or Collateral THE SECOND PART OF Executors and Administrators CHAP. I. Of the Appointing or Constituting Executors 1. The Testators freedome or Liberty in making Executors 2. How the Office of Executorship may be perform'd or discharg'd when a King is made Executor 1. THe word Executor taken in the largest sence falls under a three-fold acceptation for so there is Executor à Lege constitutus and that is the ordinary of the Diocess and there is Executor à Testatore constitutus and that is the Executor Testamentarius and there is Executor ab Episcopo constitutus and that is the Executor Dativus who is called an Administrator to an Intestate By the Civil Law this Executor Testamentarius or Haeres in the Dialect of that Law doth succeed in Vniversum jus defuncti Now the Law holds forth that Liberty to Testators that they may if they please exclude their own Wives and Children and appoint strangers in their Testaments to be their Executors for the validity of the Testators Will chiefly consists in the freedome and liberty of the Will of the Testator Therefore the Testator may if he please appoint even Bondmen Villains or Prisoners as his Executors or Infants yea whether born or not born at the time of the Testators death or Women whether under Covert and Married or Sole Also Testators may if they please make such persons their Executors as are either their Debtors or their Creditors or one single person or many joyntly as Co-Executors in several persons or many joyntly representing one Body as a Colledge City or other Corporation So likewise they may make their Executors simply and absolutely or conditionally also from a certain time or to a certain time also either universally or specially and particularly likewise in the first second third c. degree by the substitution of one Executor in the place of another And here note that after how many wayes an Executor may be appointed after so many and the same wayes may a Legacy be given and whosoever is capable of an Executorship is also capable of a Legacy Et è Contra. 2. When the King is made Executor he doth appoint certain persons to Officiate the Execution of the Will against whom such as have cause of Action may bring their Suits and appointeth others to take the account So Katherine Queen Dowager of England Mother of Henry the sixth who died 2 June 1436. made her Will and thereof Henry the sixth her sole Executor whereupon the King appointed Robert Rolleston Keeper of the Wardrobe and others to Execute the said Will by the oversight of the Cardinal the Duke of Glocester and the Bishop of Lincoln or any Two of them unto whom they were to account CHAP. II. Of Conditional Executors 1. Executors may be appointed simply or conditionally 2. Executors may be limited in point
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 Yea it is also said that a Bastard an Excommunicate or an Out-lawed person may be as able and as absolute an Executor as any other Also Infants may be made Executors but the performance of that Office shall not be committed to them untill they have attained unto the Age of seventeen years To the first forementioned may be added Corporations which although lawful ones yet may not stand Executors unless they can duely Prove the Will and take an Executors Oath Finally note that what hath been here formerly said of Executors may be also applyed to and understood of Administrators CHAP. VII Of an Executors Executor 1. That the Executor of a sole Executor is Executor to the first Testator 2. That an Executors Executor cannot perform a Trust committed by the first Testator 3. An Executors Executor hath nothing to do with the first Testators Goods where there is a surviving joynt-Executor 4. In what Case an Executors Executor shall have to do with the first Testators Goods when the surviving joynt-Executor shall not meddle therewith 1. AN Executors Executor where there is no joynt-Executor is Executor to the first Testator as he is to the second and consequently hath a right to all the profit and is liable to all the charge that the first Executor had or was subject unto yet with this caution and difference that the one Testators Goods shall not stand charged for the other Testators debts but each for his own respectively And if in such case the Executors Executor assume the Administration of the first Testators Goods he cannot afterwards refuse the Administration of the Goods of the later Testator but he may accept the later yet refuse the former but not è contra Also an Executors Executor shall not be admitted to Administer the Goods of the first Testator where the first Executor who was his Testator refused to Administer or died before Probate unless all the residue of the first Testators Goods after the debts paid be given in the Will to the first Executor 2. Where a special trust is by Will recommended to an Executor as to sell Lands c. This being not performed in his life-time shall not be performable by his Executor after his death Contrariwise it is of an interest as to take the profits of Lands for certain years towards payment of Debts and Legacies or for recovery of Rents of Inheritance left unpaid in the Testators life-time 3. If Two Executors be appointed whereof one maketh his Testament wherein he nameth his Executor and dieth his joynt-Executor surviving in this Case the Executor of the Executor is not to be joyned with the said joynt-Executor surviving neither in the Execution of the Will nor in Suits or Actions And if such Executor of the Executor have any Goods which did belong to the first Testator the surviving Executor of the same first Testator may have an Action against such Executors Executor for the same Insomuch that if the surviving Executor doth afterward die intestate yet may not the Executors Executor meddle with the Goods of the former Testator for the power of the Executor who died first was determined by his death the other then surviving And the Judge in this Case may commit the Administration both of the surviving Executor who died afterwards intestate and of the Goods of the former Testator not before Administred And if the Executor of the Executor who died first meddle with the Goods of the first Testator he may be sued by the Creditors of the first Testator as Executor in his own wrong But where there is no joynt-Executor there most things which concern immediate Executors extend also to the mediate or more remote Executors that the mediate Executor in the fourth fifth or further degree stands in like manner Executor to the first Testator as the first and immediate Executor and may sue or be sued as the former 4. Suppose Two Executors whereof One refuses to Prove the Will and Administer the other Proves it Administers and dies Testate In this Case the Executor of that joynt-Executor that so Proved the Will shall be the first Testators Executor and the surviving Executor so formerly refusing shall not now be admitted to intermeddle therewith because his Election determined at his Co-Executors death But it is otherwise where the surviving Executor hath accepted the Executorship for in that Case he shall have the sole disposing of the Estate and the Co-Executors Executor is not to intermeddle therewith but to surrender to the other what Goods belonging to the first Testator happen to be in his Custody Errour the Errour assign'd was That W. E. had brought debt upon an Obligation by the name of W. E. Administr Bonorum Catallorum A. E. durante minori aetate of J. E. Executor of the said A. E. Executor of R. E. and demands a Debt upon an Obligation of Twenty nine pound made to the said R. E. the first Testator whereas he could not bring an Action by this Name but as Administrator of R. E. But it was said that Administration of the Goods of R. E. being committed to him by this name omnium Bonorum c. A. E. it may well be committed to him by this Name especially when A. E. did not die Intestate but made an Executor 10 Ed. 4. 1. That by the grant of the Administration of the Goods of the Executor Administration is by it granted of all the Goods of the first Testator 27 H. 8. 7. Curia Contra clearly For by this Administration committed he hath no Authority to meddle with the Goods of the first Testator and for this cause the Judgement was reversed Debt against the Executor of an Executor The Defendant pleaded that the Executors Testator had fully Administred and that he had nothing in his hands at the time of his death and it was found that he had Assets Whereupon a Fieri facias issued to the Sheriff and he returned that the Defendant had nothing And it was held that the Sheriff should be amerced for he should have stopt making such Return And that it should be no prejudice to the Plaintiff for that the Debt shall be charged so long as the Record remains in force not Reversed by Errour nor Attaint And if he hath no Goods of the Testators he shall be charged of his own proper Goods For that when he pleaded that the first Testator had fully Administred he did not say that Assets did not come to his hands after his Testators death CHAP. VIII Of an Executor in his own wrong 1. Who is an Executor in his own wrong and what Acts make him such 2. How far an Executor in his own wrong is chargeable and how impleadable 3. What Acts shall not make a
29. 13 H. 4. Executors 118. Coke contra for when by his tortious Administration he hath given advantage to be sued as Executor he cannot by his own act purge this tort and cause the Plaintiff to sue him by another name but the Plaintiff hath election to sue him one way or other for he shall take no advantage by his own Tort as if one in Execution escapes and is taken away by the Gaoler he shall not have an Audita Quaerela and it will be a mischief if the Plaintiff shall be compelled to sue him as Administrator for it may be that whilst he Administred of his own wrong he wasted the goods and if he be only sued as Administrator he shall only be charged of the goods which came to his hands since Administration 12 R. 2. Administrators 21. And it was afterwards adjudged that the Writ was good and that the Defendant respondra ouster Nota if Judgement be given against an Executor upon Demurrer and Execution be awarded the Sheriff cannot return nulla habet bona Testatoris but is to return a Devastavit as if it had been found against the Executor by Verdict for per Curiam he hath charged himself by his own Plea Debt per c. vers c. as Executor he pleaded Nunques Executor c. and on special verdict found that Administration of the goods of the Testator was committed to the Wife of the Defendant who is dead and that he kept bonam partem bonorum in his hands and sold them Williams moved this Verdict was void for the uncertainty for bonam partem is altogether uncertain but it was held to be well enough for if he detain any part it makes him Executor de son tort and wherefore it was adjudged for the Plaintiff Debt against R. as Executor of T. the Defendant pleads that T. died Intestate and that certain of his goods came to the Defendants hands and afterwards Administration was committed to J. S. to whom he had delivered the said goods Et per Curiam it is not any Plea for if Administration had been committed to himself it would not have purged the first tort So here although Administration is committed to a stranger in regard that he hath once made himself chargeable to the Plaintiffs Action as being Executor de son tort c. he shall never after discharge himself by matter ex post facto Wherefore c. Adjournatur vid. 21 H. 6. 8. 9 Ed. 4. 47. 2 R. 3. 20. The Executor of A. brought Action of Debt against B. as Executor of D. upon a Bond the Defendant pleaded that D. died Intestate and that before the Writ brought Administration of his goods was committed to N. who Administred and yet doth the Plaintiff replyed That D. died Intestate and before the Administration granted divers goods of his came to the Defendants hands which the Defendant as Executor of the said D. Administred seu aliter ad suum proprium usum disposuit whereupon Issue being joyned it was found for the Plaintiff for since there was an Executor before the Administration afterwards granted the Plaintiff had cause of Action vested in him which shall not be taken away by such Administration afterwards granted though it be before the Action brought and so much the rather because the goods taken by wrong before the Administration shall not be Assets in the hands of the Administrator till they be recovered or damages for them A Woman Executrix taketh a Husband afterwards they are Divorced upon a Pre-contract the Wife Appeals to the Delegates and pendant the Appeal the Husband Administreth the goods and then dieth It was a Question whether the Husband should be said to be an Executor in his own wrong vid. 2 Jac. Co. 5. par Reads Case 33. That when a man dieth Intestate and a stranger taketh his goods and useth them or sells them he is an Executor of his own wrong for they to whom the deceased was Indebted have not any other against whom they can bring their Actions for recovery of their Debts And so note that the very seisure of goods will make one an Administrator of his own wrong Debt against G. as Executor to H. the Defendant pleads that H. the Testator was bound in a Stat. of One Hundred Pound and besides that he had not Assets and hereupon they were at Issue and a special Verdict found That the Defendant was Executor de son tort demesne and that the Testator was indebted unto him and that he retain'd divers goods to satisfie that debt due unto himself and over and above then to satisfie the Recognizance he had not in his hands c. si c. It was argued by Tanfield and Goldsmith for the Plaintiff and by Coke for the Defendant The sole point was whether an Executor de son tort may retain goods to satisfie himself And Coke moved that he well might and the Plaintiff by this Action against him hath allowed him to be rightful Executor wherefore the finding that he was Executor per tort is not material and he being allowed to be Executor may do all things as an Executor viz. pay Debts or any other Lawful Acts and as he may do it to a stranger so he may pay himself Gawdy and Fenner were of his Opinion For as he shall be charged by reason of his possession Like reason it is he should be allowed all Lawful Acts and this is here a Lawful Act as where c. Popham and Clinch è contra For an Executor de son tort shall never have any benefit by his Malefesance and c. A Precedent was cited Pasch 32. Eliz. in C. B. That an Executor de son tort might not retain to satisfie himself wherefore c. Afterwards upon another day it was moved again and the Court said They were resolved That an Executor de son tort de mesme cannot retain goods to satisfie himself his own debt And Popham said That divers of the Justices in Serjeants Inn to whom he had propounded the Case were of that Opinion and that they were resolved to enter Judgement for the Plaintiff But it was then surmised to the Court that the Defendant was dead and thereupon a stay of Judgement was prayed but the Court would not stay it upon such surmise but upon the Plaintiffs prayer Judgement was entered 5. Co. 20. Ejectione firmae for Whites Closes upon Not Guilty it appear'd upon the Evidence That a Lease for years was granted to one Okeham who died Intestate and Anne his Wife assigned it per paroll to one Burgess and after she got Letters of Administration and made an Assignment thereof to one Kenrick And the Court directed the Jury for Kenrick the last Vendee yet they agreed That if one Enter as Executor of his own wrong and sell Goods and after obtain Letters of Administration the Sale is good but in this Case there is a Term
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
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
Debt out of the Testators and not the Executors Goods which is conceived a more reasonable way than to charge the Executors for that they bear the burthen of the Administration of the deceaseds Will they deserve to have as much favour as Reason will admit and not be charged of their own proper Goods It was further said That if an Executor should be lyable to such Judgement of his own Goods it would be a cause of often refusing the Administration of Testaments for it is a thing of ill consequence to bind Executors in their own proper Goods in any other Cases than have been in fore-time adjudged which Cases were cited out of divers Books but here omitted for brevities sake none of which Cases have any resemblance with this in question Debt was brought against an Executor the Plaintiff Declared upon a simple Contract To which the Defendant pleaded Fully Administred It was found against him and moved in Arrest of Judgement for that the Action was against an Executor who is not chargeable in that manner and it was said That when it doth appear to the Court that the Executor is not chargeable the Court ought not then to Judge for the Plaintiff and to this purpose some Books were cited and it was said That the Reason why an Executor shall not be charged upon a simple Contract is for that he is a Stranger and cannot have notice of the Contract and therefore the Law will not have him to be charged for that alone without somewhat else But in this Case it appears that he had notice of the Contract inasmuch as thereupon he pleaded fully Administred and that Plea being admitted it implyes as if he had known of the Contract and therefore when he pleaded that he had fully Administred which was found against him Judgement ought to have been given for the Plaintiff for proof whereof a Judgment was cited which appears to have been given An. 10 H. 6. fol. 15. and 13 H. 6. As the Book sayes in the like Case against an Executor upon a simple Contract All which notwithstanding it was resolved by the Court That the Plaintiff should take nothing by his Writ giving their Reasons for such their Judgement which for brevities sake are also here omitted Debt against an Administrator upon an Arbitrement made betwixt the Plaintiff and the Intestate in Writing and the Defendant demurr'd thereupon and without argument it was adjudged for the Defendant because the Intestate might have waged his Law But otherwise it were if it had been in debt upon Arrerages of Accounts before Auditors Assumpsit against an Executor upon the Promise of the Testator and in the Declaration it was not averred That he had Assets to pay debts c. But Mich. 29 30 Eliz. It was adjudged that the Declaration was good and the Plaintiff recovered Debt against an Executor upon an Obligation made by his Testator the Plaintiff was Non-suited the Defendant had Costs by order of the Court. Otherwise it is where an Executor is Plaintiff and is Non-suited For it cannot be intended that it was conceived upon malice by him Vid. Stat. 23 H. 8. cap. 15. Debt against an Executor upon an Arbitrement made in the time of the Testator It was demurred in Law whether it lay or not Because the Testator might have waged his Law And adjudged without Argument that it lay not Debt against P. as Executor The Plaintiff had Judgement to recover de Bonis Testatoris And thereupon a Scire Facias was awarded and the Sheriff returned Quod nulla habuit bona Testatoris And the Plaintiff surmiseth that he had wasted the Testators Goods whereupon he prayeth a Scire Facias why he should not have Execution de bonis propriis And ruled by the Court That this Writ shall not be awarded upon the surmise of the party upon a devastation nor in any Case where the Judgement is de bonis propriis unless it be upon return of the Sheriff where he returns a Devastavit Vid. 9 H. 6. 9. 57. Fitzh Execution 9. Scire Facias against an Administratrix to have Execution of a Judgement against the Intestate the Defendant pleaded Quod nulla habet bona quae fuerunt Intestati tempore mortis suae in manibus suis Administranda nec habuit die impetrationis brevis nec unquam postea And it was thereupon demurred and held by all the Court that it was not any Plea for a Judgement cannot be answered without another Judgement and it may be she had Administred all the Goods in paying debts upon Specialties which is not any Administration to bar the Plaintiff Or as some said it may be she had paid Debts upon a Statute or Recognizance which is not allowable against a Judgement But Anderson denied it for there is not any Priority of Debts upon Record unless in Case of the Queens Debt which is first to be paid And here the Defendant ought to have pleaded specially how she had Administred Wherefore it was adjudged for the Plaintiff The Defendant pleaded Out-lawry in the Testator 29 Eliz. not reversed and it was thereupon demurred Herne for the Plaintiff moved That it was not any Plea because admitting it to be a Plea it should be in regard of the Testators being Out-lawed he could not have any Goods but what appertained to the Queen and then the Executors might not have any Goods to satisfie But that is not so for the Testator might have a debt due to him upon a Contract which is not forfeited or it might be the Testator Devised Lands to be sold and which are sold the money is Assets in their hands and in 3 H. 6. 17 32. it was holden to be no Plea And of that Opinion were Walmesley and Owen For a person Out-lawed may well make a Will and have Executors over and besides the Goods forfeited to the Queen as in the Cases before put and others of the same nature But Beamond è contra for the Bar is good to a common intent and these kind of Assets shall not be intended unless they be shewn Wherefore primâ facie the Plea is good Anderson absente Adjournatur Afterwards for defect of pleading without regard to the matter in Law it was adjudged for the Plaintiff 8 Ed. 4. 6. 21 Ed. 4. 5. 39 H. 6. 27. Errour of a Judgement in C. B. against Three Executors The Errour Assigned was That one of them died pending the Writ before Judgement And Warberton moved that this was Errour but when one of the Executors Plaintiffs die this is no Errour for they might be served But the Court held it no Errour 3 H. 7. 1 3. 8 Ed. 3. 11. Scire Facias against Executors upon a Judgement against their Testator in debt They pleaded that before they had any knowledge of this Judgement they had fully Administred all the Testators Goods in paying of debts upon Obligations and it was thereupon demurred and
thousand five hundred pound upon a special Verdict the Case was That W. M. had received annually out of the Exchequer Fifty pound as a Fee for his Diet for Thirty years together which was paid him by the Command of the Lord Treasurer who had Authority by Privy Seal to make allowance and payment of all Fees due but in truth these were not any due Fees And whether his Executor shall be charged with these Summs so received was the Question And after Argument it was adjudged that he should be charged for it was held That this payment of the money by the appointment of the Lord Treasurer was not allowable for the Privy Seal is not sufficient Authority to dispose of the Queens Treasure unless where it is due and he disposing of it otherwise it is out of his Authority 2. It was held That this money delivered by Authority of the Lord Treasurer who is quasi a Judicial Officer and it was quasi a Judicial Act by him yet it shall not bind the Queen for it was without his Authority and without warrant to make allowance thereof not being due and it is at his peril who receives it or demands allowance thereof For these and other Reasons mentioned in the Report it was adjudged for the Queen against the Defendant and although he were Executor he should answer for it as a debt from the Testator 11 Co. 90. b. Errour upon a Judgement given in an Assumpsit against an Executor upon a Promise of the Testators where the Plaintiff declared That the Testator in consideration of Marriage promised to pay the Plaintiff One hundred pound and for non-performance of this promise brought the Action and Judgement there given for the Plaintiff and this matter was assigned for Errour that the Action lay not against an Executor and all the Justices and Barons besides Clark Baron held it to be Erroneous for this cause For Anderson said The Reason why Debt lies not against an Executor upon a Contract of the Testators is because the Law doth not intend that he is privy thereto or can have notice thereof and he cannot gage his Law for such a debt as the Testator might and when debt will not lie it is not fit that this Action upon a bare Promise should bind him for it stands upon one Reason And if these Actions should be allowable it would be very mischievous wherefore the Judgement was reversed Q. Whether a Recovery in this Action against an Executor is allowable against a debt upon an Obligation if it should be an Administration for then it would be mischievous to Creditors and if it should not be an Administration it would then be mischievous to Executors that they should be charged therein and not have allowance thereof against other Creditors for it may be that at the time of the Recovery they did not know of other debts Note that this Term was given the like Judgement betwixt Griggs and Helhouse in an Action brought against an Administrator upon a Promise of the Intestates to pay money c. Debt against the Defendant as Administratrix of J. S. upon plene Administravit pleaded it was found by Verdict That the Testator at the time of his death had Goods to the value of One hundred pound and was bound to another by Obligation in One hundred pound and that the Defendant had taken in this Obligation and made another in her own Name with Sureties to the Obligor And upon the motion of Heale the Court held That this was an Administration and it is in the nature of a payment and so much of the Testators debt is thereby discharged and so it was said to be adjudged in Woods Case Nota fuit Ruled accordingly Pasch 30. in C. B. which was entered Mich. 28 29 Eliz. inter Stamp Hutchins Action upon the Case on Indebitatus Assumpsit doth well lye for every debt implyes a Promise and it is one good consideration in Facto whereon to found an Action But for a debt by simple Contract due by the Testator no Assumpsit lies against Executors and it was openly delivered by Popham Chief Justice No. 44 Eliz. to be the Resolution of all the Judges and to be a President in all Cases that might after happen It was agreed by Yelverton Williams and Crook Justices That if a man by Indenture lease Land to J. D. for years rendring Rent and J. D. dye making A. his Executor the Lessor may have Action of Debt against the Executor for the Rent reserved and the Arrears thereof after the death of the Lessee albeit the Executor never enter nor agree to the Lease for the Executor represents the Testators person and the Testator by the Indenture was stop'd and concluded to pay the Rent during the Term upon his own Contract and albeit the Rent exceeded the value of the profit of the Land yet the Executor cannot waive the Land but notwithstanding that shall be charg'd with the Rent Vid. Opin Ascue 21 H. 6. 24. 11 H. 4 Contr. Action Sur Trover and Conversion of Goods upon demurrer the Case was The Ordinary committed Administration of the Goods of an Intestate to the Defendant afterwards the next of Kin sues out a Citation in the Ecclesiastical Court against the Defendant to Repeal that Administration and he pendente Lite sells those Goods and afterwards his Administration is Repealed and Administration committed to the Plaintiff who for this Conversion pendente Lite brings this Action and it was moved for the Defendant that this Action lyes not for the Administration at the Common Law is well committed and the Statute doth not alter the Law in this point but gives a penalty against the Ordinary if he commits them not to the next of Kin and the Administrator till Administration Repealed hath an absolute Authority to dispose of the Goods as he pleaseth Tanfield è contra The Conversion pendente Lite in the Ecclesiastical Court is not lawful but is a Tort to the Plaintiff and that the Sentence there proves which is that all things attempted or done pendente Lite shall be void and the Justices ought to have regard to the Civil Law in this point as in 27 H. 6. Guard 118. 2 R. 2. Quare impedit 143. and 4 H. 7. 13. And by the Sentence it appears that the Administration is revoked as if it never had been and upon this reason it is in Dyer 339. where an Administrator recovered a debt and afterwards another procured himself to be joyned in the Administration and released the debt and afterwards it being revoked this release was not any bar to the execution And Mich. 25 26 Eliz. in the Common Bench between White and Cary this very point was in question and adjudged that the Action lay Gawdy The Action well lies for the Sentence doth not repeal mean Acts done by an Administrator which are for the Intestates benefit but forasmuch as these Goods were not converted
they both live but after her death it may be otherwise yea and if a void Administration happen to be committed and the Administrator wast the Goods and then Administration be committed to another in this case the former Administrator may be charged by the Creditors for the wast done in his time 4. But for an Executor or Administrator without fraud to sell the Goods of the deceased under value especially where more cannot conveniently be made of them is no wast Nor shall one Executor or Administrator be charged for the wast done by another for where there are many joynt-Executors if only one of them doth commit the wast he alone shall suffer for it So the Executor or Administrator committing Wast in the Gift or Sale of any of the Goods of the Defunct shall answer it alone and not he to whom the Goods are so given or sold yet the Executor or Administrator of such an Executor or Administrator shall not be question'd for it after his death Also an Executor or Administrator may lawfully sell or convert the deceaseds Goods to his own use so as he convert the money thereof to the deceaseds use in payment of Debts or the like and pay so much of his own money as the Goods so converted to his use are worth and this shall not be imputed to him as a Wast Yea he may sell any special Legacy that is bequeathed and even this shall be no Wast in him though it be a wrong to the Legatee in case there be Assets to pay Debts besides But when he hath enough to pay all the Debts and Legacies then he may dispose of the whole Estate how he please without any prejudice to himself or others And note That the wasting Executor doth not incurr dammage or make his own Goods lyable for satisfaction for the Wast further than the value of the Testators Goods so wasted or mis-administred doth amount unto An Action of Debt was brought against Two Executors one appeared and confessed the Action the other made default and Judgement was given to recover de bonis Testatoris in both their hands whereupon a Scire Facias issued The Sheriff returned Nihil but he who made default had wasted the Goods upon which a Scire Feci issued against him who had wasted the Goods and upon Return of the Scire Feci Execution was awarded of his own proper Goods only without his co-Co-Executor 5. If the Executor confess he hath Assets supposing the Executor to be Defendant then may the Sheriff Return a Devastavit If the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Dammages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Dammages as was formerly shewn of the Executors or Administrators own Goods And if the Sheriff upon a Scire Facias Return a Devastavit then a Fieri Facias or Elegit may be sued out to levy the Debt and Dammages of the Executors or Administrators proper Goods And if the Executor plead That he never was Executor nor Administred as Executor and it be found against him that he had Administred but one penny the Judgement shall be to recover the Debt and Dammages of the Executors own Goods And in a Case of Debt brought upon a Record the Execution shall be brought where the Record remains Judgement was given against B. in a debt of One hundred pound in C. B. After the said Judgement he entered into a Statute to J. S. and died Intestate his Wife takes Letters of Administration and removes the Record of the said Debt recovered against her Husband into B. R. by Errour depending the Sute she payes the Debt due upon the Statute to J. S. Afterwards the former Judgement is affirmed On a Scire Facias against the Administratrix to have Execution she pleaded payment of the said Statute beyond which she had not Assets Upon this the Justices of the Kings Bench were divided viz. Popham and Gaudy against Fenner and Yelverton It was referred to the Opinion of the other Justices they joyned in Opinion with Fenner and Yelverton and judged it a good Plea and that the paying of the Statute was no Devastavit for at the time of the Execution of the Statute she could not plead the Judgement of C. B. it being then doubtful whether it would be affirmed or not therefore no default in the Wife-Administratrix in paying and discharging the Statute for she could not have an Audita Querela nor any other Remedy to be freed from payment of the Statute at the time of the Execution thereof CHAP. XXVII Of the Executors power in Sale of Lands devised to be sold 1. The difference between a Devise that the Executors shall sell the Land and a Devise of the Land to the Executors to be sold 2. The profits of Land Devised to be sold are not Assets in the Executors hands for a time before such Sale 3. In what Case the Heir may or may not enter upon unsold Lands devised to be sold 4. Executors accepting may without others Refusing make a good Sale of Lands devised to be sold 5. In what Case surviving Executors cannot sell Lands devised to be sold 1. WHere Land is by Will appointed to be sold neither the money raised nor the profits shall be accounted as any of the Testators Goods or Chattels And when a man deviseth that his Executors shall sell the Land there the Land in the mean time descends to the Heir and until the Sale be made the Heir may enter and take the Profits But when the Land is Devised to his Executors to be sold there the Devise taketh away the Descent and vesteth the State of the Land in the Executors and they may Enter and take the profits and make sale according to the Devise Also when a man deviseth his Land to be sold by his Executors it is all one as if he had devised his Land to his Executors to be sold because he then likewise deviseth the Land whereby he breaketh the Descent 2. If a Testator doth appoint by his Will his Executors to make sale of certain Lands for the use and behoof of the said Testator and the Lands after the Testators decease happen to remain some time unsold the Profits thereof in the said time before such sale made shall not be Assets in the Executors hands unless the Testator did devise That the mean Profits till the Sale should be Assets in their hands for otherwise they shall not be so though the Executors in this Case have no Estate or Interest in the Land but only a bare and naked Power and Authority 3. But if the Executors having power to sell the Land of the Testator defer the Sale thereof after the offer of a reasonable price converting the Profits thereof to their own use the Heir may lawfully Enter to the Land and put out the
as well by his own Oath as by the Law insomuch that should the Testator himself discharge his Executor from making an Account yet may the Ordinary at his discretion in case of Fraud exact an Account from him Therefore the Ordinary may if he please call him to Account either Generally or Particularly as the Case shall require and that either at or without the motion or instance of the Creditors or Legataries within a year or what time he please at which Account he may call all the Creditors and Legataries and therein he must set forth what he hath received what expended and Prove it too if need so require And upon a just Account so made the Ordinary may acquit him whereby he is discharged of all Sutes in the Spiritual Court But as to that the stile of each Court is to be observed And in the Proof of such Accounts the lesser summs as under Forty shillings may be Proved by the Executors own Oath the greater must be by due proofs 2. The Executor ought to have a competent time for the performance of the Will before he be called to an Account which time ought to be a Twelvemoneth Yet he may sooner be called to it by the Ordinary in case of Male-Administration or if the Ordinary see cause for it at least to a particular Account but herein also the several stiles of several Courts are to be observed And in this Account the Funerals Debts Legacies and moderate Expences ought to be allowed to the Executor so far as he hath really paid or is obliged to And the Executor having made a full and just Account ought to be acquitted and discharged of all further sute if it be such an Account of his whole Office neither is he to be called by the Ordinary to any further Account 3. No Executor is obliged to make any Account to the Creditors or Legataries extrajudicially but at their instance to the Ordinary he is compellable to it judicially and at the making of such Account they and all others having or pretending to have interest are to be summoned Legally to be present Otherwise the Account made in their absence and they not summoned will not prejudice them And yet extrajudicially an Executor may exact an Account of his Co-Executor but not in Judgement or judicially but the Ordinary as aforesaid may call them both or either of them to a Judicial Account CHAP. XXX Of Administrators in a notion distinct from Executors 1. Administrator what he is in the Law 2. The Origination of an Administrator by and to whom Letters of Administration are to be granted 3. What provision of Law in Case of an Administrator after an Executors death 4. What the Law is in case a Stranger doth Administer or the Ordinary grant his Letters ad Colligendum 5. In what manner Administration is to be granted 6. Of Administration durante minoritate 7. In what Cases Letters of Administration may be granted 8. Law-Cases touching this Subject 1. AN Administrator is in the Law called Executor Dativus because as such he is constituted or appointed by the Ordinary As by the Statutes so by the Common Law of this Realm an Administrator is properly taken for him that Legally hath or in his own wrong illegally the Goods and Chattels of a person dying Intestate or hath Administred to the same but more properly that hath them committed to his trust and charge by the Ordinary and is accountable for the same whensoever it shall please the Ordinary to call him thereunto and this is done for default of an Executor 2. By the Constitution of Leo the Emperour it was Enacted That if a man dying bequeath any thing for the Redemption of Captives c. and appoint one to execute the Will in that point the party so appointed should see it performed but if he appointed none to do it then was the Bishop of the City Authorized to demand the Legacy and therewith to perform the Will of the deceased without delay From whence it is probably conjectured that the Administration of the Goods of persons dying intestate by Bishops and others of Ecclesiastical Authority and Jurisdiction under them was Originally derived For it was Anciently Ordained That the Goods of those dying Intestate should be committed to the disposition of the Ordinary who should be obliged to answer the deceaseds debts so far forth as his Goods would extend unto even as Executors themselves in the like case And after this by another Statute power was given to the Ordinary to appoint Administrators and to Authorize them as fully as Executors to gather up and dispose the Goods of the Intestate Alway provided that they should be accountable for the same as Executors by which Statute it is ordained That the Ordinaries shall depute the next and most lawful Friends of the Intestate to be his Administrators who then in Law have nigh in all things equivalent power with Executors Insomuch that whatever hath been or may be spoken of the one may nigh in all points be properly applyed and aptly accommodated to the other And lastly in confirmation of the Premises it is enacted by a latter Statute That in case any person die Intestate or having made a Will the Executor therein named refuse to Prove the same the Ordinary or others Authorized for the Probate of Testaments may grant Administration to the deceaseds Widow or to the next of his Kin or to both at the Ordinaries discretion taking Surety for them for the due Administration And by the same Statute it is further Enacted That if divers persons claim the Administration as next of Kin which be in equal degree of kindred to the deceased and where any one person only desireth the Administration as next of Kin where indeed divers persons be in equality of kindred then in every such case the Ordinary is at his Election and Liberty to accept any one or more making request where divers do require the Administration 3. An Executor after Probate made dying Intestate the Administration of the first Testators Goods not Administred may be granted to whom the Ordinary shall see cause in Law and he may grant the Administration of the Goods both of the first and second deceased de bonis non Administratis to one and the same person in which case the Administrator ought to see that his Administration have special words for granting the Administration of the first Testators Goods not Administred For though some are of Opinion that by the general Administration the Administrator shall have not only the Executors but the Testators Goods also yet this is otherwise held for Law at this day And an Action shall lie for or against such an Administrator as for or against an Executor and he shall be charged to the value of the Goods of the deceased and no further if it happen not otherwise by his
own false Plea or for that he hath wasted the deceaseds Goods But if the Administrator die his Executors do not succeed him in that Administration but the Ordinary is to commit a new Administration The Law is the same when an Executor dyeth before he hath Proved the Will or Administred any of the Goods in which Case a new Administration is to be granted to the Widow or next of Kin of the first Testator with the Will annexed unless he had also bequeathed the residue of his Goods unto the said Executor for in that case the Administration of his Goods belongs unto the Widow or next of Kin of the Executor and not of the Testator Or if an Executor be made Universal Legatary and die before he hath Proved the Will of the Testator in this case likewise the Administration of the Testators Goods doth belong to the next of Kin of such universal Legatary and not of the Testator 4. If a Stranger that is neither Administrator nor Executor take to himself the deceaseds Goods and Administer of his own wrong he shall be charged and sued as an Executor and not as an Administrator in any Action that is brought against him by any Creditor But if the Ordinary make a Letter Ad Colligendum bona Defuncti he that hath such a Letter is no Administrator but the Action lieth against the Ordinary himself as well as if he took the Goods into his own hands or by the hands of any of his Servants by any other Command or Order And Note that if an Administrator doth alienate or convert to his own use all the Goods which did belong to the Intestate in this case an Action doth lye against the Executor of that Administrator and is lyable to be charged for the debts due by the Intestate which is otherwise of an Executors Executor 5. An Administration must pass under Seal in Writing not by word of mouth for the Ordinary cannot commit Administration by word of mouth otherwise it is if it be entered into his Registry though Letters of Administration be not formerly drawn Yet it may be granted as well upon condition as absolutely and as well for part as for the whole Estate so that a man dying possessed of Goods in Two Provinces making his Will of the Goods only in one of them and dying Intestate as to the Goods in the other Province Administration may be granted as to the Goods of that Province whereof he died Intestate likewise Administration may be granted only for or during some certain limited time Also an Executorship limited to a certain time the Ordinary ought to grant Administration after the expiration thereof or if a man appoint an Executorship not to begin till some certain time after the Testators death Administration is to be granted till that time doth Commence In like manner where an Executor is made conditionally and the condition yet depending it is for prevention of prejudice to Creditors and Legataries Provided that the Ordinary may commit Administration to the said conditional Executor only during the dependency of the condition but upon infringement or defect of the condition Administration is to be granted to the next of Kin. 6. There is also an Administrator durante minori aetate which is a special kind of Administration and is only in case where an Infant under the Age of Seventeen years is made Executor in which case the Administration is committed to one or more of the next of Kin of the Infant during his Minority that is till he be capable of the Executorship which is at the Age of Seventeen years the power of such an Administrator is equivalent to the power of other Administrators and therefore if it be granted during the Minority of several joynt-Executors all under the Age of Seventeen years and one of them dye or attain to the Age of Seventeen years then is the Administration determined so also is it if a Feme-Minor Executrix take a Husband of that Age. And if such an Administrator durante minori aetate get a Judgement and before Execution the infant-Infant-Executor doth come of Age the Executor himself may have Execution of this Judgement 7. To the several reasons and causes for granting of Letters of Administration mentioned in the Premises may be added That if a Testament be not made with all Freedome as it ought to be viz. without fear of Loss or hope of Gain without Threats Flattery Fraud or Collusion without Errour Uncertainty Fallacy Imperfection Cancelling or Revocation or if the Testator be a person incapable of making a Testament or if his Will contrary to the nature of Wills depend upon another mans Will or otherwise the party dying Intestate as aforesaid or Testate and the Executor refuse to Prove the Will In all these cases the Administration is to be committed to the Widow or next of Kin to the Intestate sometimes with the Will annexed if there be any and in some cases not But the Administration is not to be committed according to the Statutes to the Widow or next of Kin in case of suspending the Probate by reason of the yet dependency of some unaccomplished condition in the Will but to him that is made Executor and that only for and during so long time as the condition dependeth for in this case the party is not Intestate so long as the condition is accomplishable or performable Again if the Mind Will and Intention of an intestate touching the disposition of his Goods and Chattels be declared though for want of making an Executor he dye Intestate so as Administration is to be committed yet for that here is not only an inchoation but in part a progression of a Will it is to be annexed to the Letters of Administration and to be observed and performed by the Administrator In Detinue brought by an Administrator of a Chain of which the Intèstate died possessed and which after came to the Defendants hands the case was upon a special Verdict That the Administration was committed to the Defendant in London by the Bishop of Cork being in London but they did not find that the Defendant was possessed of the Chain in London and in this Case these Points were resolved 1. That a Bishop of Ireland being in England might commit Administration of things in Ireland because it is but a Power and Authority which follows his person wheresoever it is 2. That an Administrator made by a Bishop of Ireland could not bring an Action here as Administrator because of the Letters of Administration granted in Ireland there could be no Tryal here 3. That an Administrator might declare of his own possession although he was never possessed if the Intestate at the time of his death was possessed for that the Law casts a possession upon him 4. That upon a general Issue pleaded the Jury might find a forreign matter as a thing done out of England 5. It was resolved
That in the Principal Case the substance of it was the Possession and not the Administration It was adjudged for the Plaintiff Pasch 27 Eliz. in C. B. Carter and Crofts case Godbolt 33. Vid. Dyer 304. An Administrator brought an Action of Debt for Rent which was found for the Plaintiff and Judgement given Exception was taken that the Plaintiff had not shewed by whom the Letters of Administration were granted to him But the Opinion of the Court was That it was too late to shew that after Verdict for that the Jury have found that the Administration was duly granted And it was said in the Court That in a Declaration it is not necessary to shew by whom the Letters of Administration are granted or to say that they were granted by him cui pertinuit or per loci illius Ordinarium Yet Note that it was said in another case That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintiff to shew by whom the Letters were granted to the Defendant but he must shew by whom the Letters of Administration were granted to himself to entitle him to the Action for if it appear not to the Court that he is Administrator he cannot Sue If an Infant be made Executor Administration during the Minority of the Infant may be committed to the Mother and the same shall cease and be void when the Infant is of the Age of Fourteen years But such Administrator cannot sell the Goods of the Testator unless it be for necessity of payment of debts because he hath the Office of Administrator only pro bono commodo of the Infant and not to its prejudice Note it was resolved per Curiam That an Administration durante minori aetate of an Executrix was not within the Statute of 21 H. 8. of necessity to be granted to the Widow of the Testator because there is an Executor all the while otherwise if the Executor were made from a time to come An Infant was made Executor and Administration was granted to another durante minori aetate of the Infant who brought Action of Debt for money due to the deceased and had the Defendant in Execution and then the Executor came of full Age. It was moved that the Defendant might be discharged out of Execution because the Authority of the Administrator was determined and he cannot acknowledge satisfaction And it was said That he was rather a Bailiff to the Infant than an Administrator But the Judgement of the Court was That though the Authority of the Administrator was determined yet the Recovery and Judgement did remain In an Account brought by an Administrator durante minori aetate against the Defendant as Bailiff of such a Mannor it was found for the Plaintiff It was moved in stay of Judgement That it is not shewed that the Executor the Infant was within the Age of Seventeen years and it might be he was above the Age of Seventeen years and yet under Age But the Opinion of the Court was That it shall not be so intended unless it be shewed that he was above Seventeen years and especially when the Defendant had admitted him to bring the Action and had pleaded to Issue Between P. and S. the Case was An Infant was made Executor to whom certain Leases among other things were devised and Administration during his Minority committed to one who sold and alienated the Leases It was agreed by the Justices That the Administrator could not sell the Leases unless there were good and reasonable cause moving thereunto as in case there were no other Goods save the Leases wherewith to pay the Testators debts which ought of necessity to be paid the Leases may to that end and purpose be sold otherwise not but Beasts and other things which cannot long be kept or preserved especially fat Beasts Corn or the like may be sold And of this Opinion was the Chief Justice of the Kings Bench and the Chief Baron Debt as Administrator of B. upon an Obligation the Case was That the Intestate died in Lancashire but the Obligation was at London at the time of his death and the Bishop of Chester in whose Diocess he died committed Administration to J. S. who released to the Defendant and the Arch-Bishop of Canterbury committed the Administration to the Plaintiff and this Release was pleaded in Bar and it was thereupon demurr'd Warberton Every Debt follows the person of the Debtee and Chester is within the Province of York where the Arch-Bishop of Canterbury hath nothing to do Anderson Where one dies who hath Goods in divers Diocesses in both Provinces there Canterbury shall have the Prerogative otherwise there would be Two Administrations committed which is Res inaudita The Debt is where the Bond is being upon a Specialty but debt upon a Contract follows the person of the debtor and this difference hath been oftentimes agreed vid. Dyer 305. And if the Arch-Bishop of Canterbury hath not any Prerogative in York but that several Administrations ought to be committed yet at leastwise Administration for this Bond ought to be committed to the Arch-Bishop of Canterbury wherefore the Release is not any Bar. Debt against the Defendant as Administrator of F. he pleads a Recovery against him as Executor and besides to satisfie that he hath not any Assets And it was thereupon demurred and adjudged to be a good Plea and he shall not be twice charged wherefore it was adjudged for the Defendant Debt against the Defendant as Administratrix of T. H. her Husband upon a Lease to the said T. by Indenture for years and how the Defendant is Administratrix to him And for Rent arrear after his death the Action was brought in the Debet and Detinet upon Not Guilty pleaded it was found for the Plaintiff and now moved in Arrest of Judgement That the Declaration was not good for that c. And at another day it was moved That this Declaration ought to have been in the Detinet and not in the Debet and Detinet because she hath the Term as Administratrix and is not charged by her own Contract but by an Act of the Testator and to that purpose was cited 19 H. 8. 8. 10 H. 5. 7. And a President was shewn in C. B. between Barker and Kelsay where the Action was brought in the Detinet only And Godfrey affirmed that in Fenns Case in this Court it was Ruled That the Action ought to be brought in the Detinet Gaudy The Action is well brought in the Debet For this Rent though Arrear after the death of the Intestate begun first in the Administratrix and therefore the Action well lies against her in the Debet For the reason why the Action against an Executor shall be in the Detinet is for that the debt grew due by the Testator and therefore it cannot be said that Executor Debet But in an Action against the Heir it shall
Absque hoc that he Administred as Executor or in any other manner and it was thereupon demurr'd and adjudged to be an ill Plea because he doth not say that he refused before the Ordinary nor confesseth any Administration for that which he confesseth is not any Administration and so no answer to the Plaintiff Wherefore it was adjudged for the Plaintiff Debt The Plaintiff as Administrator of J. S. sued upon an Obligation made by the Defendant and had Judgement afterwards the Administration is revoked but notwithstanding that the Plaintiff proceeded and got the Defendant in Execution And upon a motion to the Court it was agreed by the whole Court That the Execution was void and that the Defendant ought to be discharged Quia Erronicè emanavit for that the Letters of Administration being revoked the Plaintiffs power is determined therefore the ground of his sute being overthrown viz. his Commission he hath no Authority to proceed further and the Execution issued without Warrant The same Law per Curiam on a Judgement for an Administrator the second Administrator shall not have Execution thereon for he is not privy to the Record Quod nota Debt The Case was Rent was granted to Baron and Feme for their lives the Rent was Arrear the Baron dies another Rent is Arrear the Feme dies Intestate and her Administrator brings debt for the Arrerages due in the Life of the Baron and after All the Court resolved that it well lay because the Arrerages survived to the Feme as well as the Rent it self But an Exception was taken to the Declaration for that it is alledged that Administration was committed by the Dean of Lichfield and it shews not by what Authority he committed it nor that he was Loci illius Ordinarius and for this cause the Court held the Declaration to be ill for the Court intends not his Authority being special without shewing it But the pleading of Administration committed by a Bishop is good enough without saying that he was Loci ilius Ordinarius for so it shall be intended and so the Presidents warrant it but in a Bar of Replication it is vicious vid. 35 H. 6. 46. Debt brought against C. as Administrator and Judgement thereupon and now moved in Arrest thereof That this Action was brought by an Administrator who shews That Administration was committed to him by the Arch-Deacon but shews not what Authority the Arch-Deacon had to commit Administration and in proof thereof 21 H. 6. 23. and 35 H. 6. 46. were cited And the difference is where Administration is committed by the Bishop or Metropolitan and where by one who hath a peculiar Jurisdiction for in the last case he ought to shew how he hath his power Plowd 297. And although it be after Verdict yet it is not holpen by the Statute of 18 Eliz. cap. 14. being matter of substance and not of form as it was adjudged in Cutts and Bennetts Case but the Court held that it was well enough and they said That the Books are of Peculiars for it cannot be intended that they have any Authority unless it be shewn But the Arch-Deacon is Oculus Episcopi And de Jure Ordinario he is to commit Administration And it was adjudged for the Plaintiff An Executor recovers Debt and dies Intestate the Ordinary committs Administration de bonis non c. The Administrator shall not have a Scire Facias on the Judgement but a new Action of Debt as Administrator to the first Testator who is now dead Intestate A man sets a Lease for years the Lessee Covenants for him and his Assigns that he will not Lop nor Top the Trees during the Term And after the Lessee dies Intestate and the Ordinary committed Administration to J. B. who lopp'd the Trees whereupon the Opinion of the Court was That it was a breach of the Covenant for that an Administrator is an Assign as well as an Executor Administrator brought Debt and declared that Administration was committed to him by A. B. Sacrae Theologiae Professorem and saith not Loci ilius Ordinarium for which cause upon Errour the Judgement was reversed In this Case the Question was whether the Ordinary had power to take a Bond or Obligation of the Administrator to distribute according to the Ordinaries discretion the Goods that should remain after Debts and Legacies paid And it seemed to the Court That such Obligation is not good But in regard the Case was of great consequence Adjournatur Debt brought by J. S. against A. P. Executor of H. W. upon a Bond or Obligation of One hundred Marks the Defendant pleaded he was never Executor nor Administred as Executor whereupon they were at Issue and at a Nisi Prius it was found by a special Verdict That he had received Seven pound Debt due to the Testator and made an Acquittance for the same and took into his possession several particular parcels of Goods of the Testators and converted them to his own use whereupon all the Justices resolved That it was an Administration but at the Request of Sir Anthony Brown they respited the Judgement after the Defendant died and it repented the Justices that they had not given Judgement The Ordinary may grant several Administrations of several parts of the Intestates Goods 10 Ed. 4. 1. b. 18 H. 6. 22. b. 38 Ed. 3. 21. Also he may grant the Administration conditionally as whereas it was before granted to J. S. who is now Out-lawed or a Prisoner or beyond Sea c. he may grant it to another with an Ita tamen That if the said J. S. return into England he shall Administer when he returns If an Executor takes only the Goods which the Testator in his life-time took from him per tort it is not an Administration If certain Goods be devised to a Co-Executor and he take them without the Assent of the other Co-Executor it is an Administration because a Devisee cannot take the Goods devised without the Executors Assent Administration may be committed of the Goods of a Woman Covert who dies Intestate for possibly she might have things in Action which by the Law are not given to her Husband nor after her decease are at all invested in him D. 8 Eliz. 25. 90. Admitt A man possessed of Goods made an Infant his Executor and died the Ordinary committed Administration durante minoriaetate of the Infant to a Stranger The Question was when the Infant came of full Age what Remedy he should have against the Administrator for the Goods It was the Opinion of the Justices That he should not have an Account against him but he might have Detinue against him for the Goods or otherwise Sue him in the Ecclesiastical Court for them Debt against an Executor The Defendant pleaded That he had taken Letters of Administration The Plaintiff replyed That he Administred of his own wrong and after took Letters of Administration It
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
after recede from it to the prejudice of the Legatary Likewise if the Testator saith I give 10 l. to A. B. when my Executor will or when my Executor please In this case as in the former the Legacy is not due till the Executor thinks fit but must wait his pleasure and be in a dilatory Expectancy as long as he lives or so long as he doth not say he will pay it But if once he declare that he will pay it and after dyes before he doth pay it his Executor is obliged to make it good Contrariwise if the Legatary dye before the Testators Executor declares his consent to the payment thereof for then it doth not accrue to the Legataries Executor because it is Conditional till the Executor declares his consent to pay it and such a Condition to be performed at the pleasure of another as that the Legacy cannot come to the Legataries Executor before the Accomplishment thereof 3. If the Testator saith I give A. B. 10 l. if my Executor will In that case the Legacy is void because there the Testator subordinates his Will to the Executors makes his Executors Will Absolute and his own Insignificant But in case he saith after this manner viz. If my Executor think fit I give A. B. 10 l. Or if my Executor conceive it expedient let A. B. have 10 l. In these cases the Legacy is good because here the Testator seems not to leave it wholly to the meer will and pleasure of his Executor but as it were to the judgment of any honest or indifferent person or as the Law phrases it arbitrio boni viri The Law is the same in case the Testator saith if my Executor see cause for it or it seem reasonable to him Let A. B. have 10 l. or I would have A. B. to be 10 l. the better for me For although a Legacy cannot be left to the meer will and pleasure of the Executor yet to his just and reasonable will it may for so it is left more to Reason than to his Will 4. But what if the Testator saith I give 10 l. to A. B. if he shall deserve it of my Executor In that case the Legacy is due in case the Legatary shall carry it no otherwise towards the Executor than as any honest man would or might do in the like case or no otherwise than as any honest and indifferent person might or would be well satisfied therewith Likewise if the Testator saith I give A. B. 10 l. if he hath not offended my Executor the Legacy is due if it appears that A. B. hath behaved himself towards the Executor no otherwise than what would satisfie any reasonable and impartial man In a word when it is left wholly to the meer free and arbitrary will and pleasure of the Executor the Legacy is void but when it is left to his will only as it shall seem meet just and equal to him it is good for if in it self it be just and equal the Executor may not interpret it otherwise 5. If a man Devise all his La 〈…〉 to A. B. and his Heirs excepting Twenty pounds for Ten years which he willeth shall be employ'd for his Children This is a good Devise of the Sum of Twenty pounds a year for Ten years Or if one bequeath 20 l. to the Children of A. B. who then hath three Children more or less at the time of making such Bequest and after but before the Testators death he happen to have other Children In this case those other Children he hath afterwards shall have no part of the said Legacy but the Children born at the time of making the Testament shall have it all The Reason is because in this case it is presumed the Testators intention did not extend to any not in rerum natura when there were Children indeed and at the same time in being 6. The Testator saith I give 100 l. to my four Neighbours A. B. C. and D. Provided they bestow 10 l. in a Tombstone to be set on my Grave Although B. should refuse to joyn with the rest therein yet A. C. and D. shall have not only theâ—r respective proportion of the 100 l. but also that part that should have come to B. in case he had performed the Condition Or if he say I give 100 l. to A. and such of my Three Children as shall come to my Funeral and dyes neither of his Children are at his Funeral In this Case A. shall have the whole 100 l. because the Legacy is in the Conjunctive were it in the Disjunctive he could have but 50 l. 7. Suppose the Testator saith I give 50 l. to A. B. And more than that 100 l. to C. D. In this case C. D. shall have an entire 100 l. but no more Possibly the transposition of the words may alter the Case and make the Legacy worth 150 l. to C. D. As if he should say I give to A. B. 50 l. and 100 l. more than that to C. D. But suppose he should say I give 100 l. to C. D. more than I have given to A. B. when indeed he had given nothing at all to A. B. In that case the Legacy of 100 l. is good to C. D. notwithstanding that false Implication to A. B. 8. A. B. makes C. D. his Executor gives in his Will 1000 l. to J. G. and therein sayes I desire that J. G. will pay the said 1000 l. to the Colledge of W. and dyes After the said Colledge is dissolved and before J. G. had received the said 1000 l. from the Executor of A. B. the Question is whether J. G. shall now recover the 1000 l. from the said Executor the Colledge to whom he was to pay it being now dissolved or whether it shall remain in the Executor It is resolved that in case there was no fault in J. G. why the 1000 l. was not paid to the Colledge before its dissolution and the payment prevented for no other Reason but because of the said Dissolution J. G. shall in such case recover the 1000 l. from the said Executor 9. If a Testator bequeath 1 〈…〉 l. to A. B. and C. D. And after one of them appears incapable of taking by the Legacy the other shall have only 50 l. and not the whole 100 l. Yet there are and they of the most Learned who hold That if one of the Legataries be incapable his proportion of the Legacy shall accrue to his Collegatary as is evident by the former Case of the Tomb-stone and never fails where the Legacy is in the Conjunctive by the Law of Accression or jure Aderescendi 10. A. B. pawned a Jewel with C. D. for 100 l. then in his Will makes his Son his Executor and orders that C. D. should sell the Jewel and out of the Proceed thereof pay himself the 100 l. and restore the overplus of the value to his