former Also upon a Statute Merchant one may have an Action of debt but otherwise upon a Statute Staple and the Capias upon the Statute Merchant may be returnable in the Kings Bench or Common-Place but the writ of Execution upon the other is to bee returned in the Chancery The proceeding upon the other sort of Recognisances are after another manner for upon Recognisances at the common Law if Dyer 36â— 315. Kelw. 100. West 2 chap. 18. Broo. execution 129. Coo. 3. 11. 15. H. 7. 16. Kitch 117. the money be not paid at the day the Conusee his Executor or Administrator is to bring a Scire facias against the Conusor or if hee be dead against his heires when they be of full age or if the lands the Conusor had at the time of entring into the Recognisance be sold against the purchasers of these lands which the Conusor had at any time after the Recognisance entred into to warne them to come into that Court whence the Scire facias cometh and to shew cause why execution should not bee done upon the said Recognisance and if the party or parties cannot be found to be warned or being warned do not appear at the time or appearing shew no cause why the debt should not be levied then the Conusee shall Elegit have execution of a Moity of his lands by Elegit or if the Conusor be living of all his goods by Levari or Fieri facias at his election Levari facias but he cannot have execution of his body unlesse he bring an Action of debt upon the Recognisance or it be by course of the Fieri facias Court as it is in the Kings-Bench upon a Baile in which case a Capias doth lie Capias The proceeding against the Sureties in Statutes shall be as the Sureties Stat de Mercatoribus proceeding against the Principall but in case where there are moveables of the Principall to satisfie the debt the Suretie as it seems shall not be charged When a man doth enter into a Statute or Recognisance the land 5. What things are subject and liable to execution upon a Statute or Recognisance And when and how And what not Plow 72. Coo. 10. â—0 51. Bro. St. Marchant of the Conusor is not the debtor but the body and the land is lyable only in respect that it was in the hands of the Conusor at the time of acknowledging of the Statute or after and the land is not charged with the debt but chargeably only at the election of the Conusee but the person is charged and the land is chargable in respect of the person and not the person in respect of the land And therefore albeit the Conusor alien his land to another yet he remaines debtor still and his body and his goods shall be taken in execution and yet when execution is sued upon the land the land is charged and become debtor also First in respect of the nature and quality of the things themselves The body of the Conusor himself but not the body of his heire 〈◊〉 de Meâ—catoribus Coo. 3. 12. Plow 72. Coo. 2. 59 Littl. Sect. 358. Dyer 205. Broo. Stat. Marchant 44. Dyer 7. Co. super Littl. 374. executor or administrator is lyable to execution and may be taken albeit there be lands goods and chattels to satisfie the debt and all the demesne and copyhold lands tenements and hereditaments corporeall and incorporeall of the Conusor that are grantable over as his Mannors Mesuages Lands Meadowes Pastures Woods Rents Commons Tithes Advowsons and the like also all his goods and chattels as leases for yeares wardships emblements cattell houshold-stuffe and the like are liable to execution upon a Statue * Dyer 373 And therefore if a man make a lease for life or yeares and after enter into a Statute or Recognisance this reversion cum acciderit shall be subject to execution and the Conâ—sor cannot as it seemes by any sale thereof prevent it And yet the contrary hath been held for law Litt. Broâ— Sect. 227 * Doct. Sr. 53. Bâ—o St. Marcha 41. Dyer 205. And if one make a feoffment in see or lease for life reserving a rent this rent is extendable and the Conusee may distraine for it So if the lessee for life make a lease for yeares rendring a rent and then the lessee for life enter into a Statute this rent is subject to execution 1 Harâ—ingtons case pasche â— lac B. R. and it seemes the Conusee may bring an Action of debt against the lessee for yeares for it a Coo. 7. 3â— And albeit the rent become extinct by the purchase of the Conusor or otherwise yet as to the Conusee it shall be said to be in esse and subject to execution still And therefore if a rent be granted unto me for my life after the death of my wise and after I do acknowledge a Statute and then my wise die and then I release the rent to the terre-tenant this rent shall be lyable to execution But Annuities Offices in Dyer 7. Co. super Littl. 374. Doct. St. 53. Coo. 2. 59. 1. 62. trust Seigniories in Franckalmoigne Homage Fealty Rights Things in action and such like things are not liable to execution upon Statutes or Recognisances Also a remainder in taile or in see after an estate taile in possession is not liable to execution in these cases except it happen to come into the possession of the Conusor The lands tenements and hereditaments that are Copihold albeit Stat. de Mercatoribus Dyer 299. Plow 82. Coo. 7. 39. 3 12. Broo. Recognisance 7. Co. 1. 62. 13 H. 7. 22. Broo Stat. Marâ—c the Conusor have the fee simple of them yet are subject to Second in respect of the estate property and possession of the conusor in the things execution only for the life of the Conusor but his demesne lands wherein he hath an estate in fee-simple are liable to execution for ever if need require The lands the Conusor hath in jointenancy with another are subject to execution during the life of the Conusor and no longer for after his death the surviving jointenant shall have all but if the Conusor survive his companion then all the land shall bee subject to execution and the lands the Conusor hath as tenant in taile are liable to execution only during the life of him being the tenant in taile for afterwards they shall go to his issue in taile And yet if the tenant in taile after he hath entred into a Statute suffer a recovery of the land intailed in this case the land shall be subject to execution as if it were fee-simple land And the lands the Conusor hath in the right of his wife shall be charged and subject to execution only during the lives of the husband and wife together and no longer If a feoffment be made in condition to make an estate to another
discharge a rent before the day of paiment come By a release of all promises or Assumpsits without more Of promises Adjud Hil. 16 Jac. B. R. Briscoe vers Heires Co. 10. 51. words a man may barre himselfe of a contingent or future thing that by other words could not be released as if a man promise to me that if I S doe not pay me one hundred pound the tenth of March next that he will pay it me the twentieth of that moneth and before the time I release to him all actions and demands this will not discharge the promise But if I release to him all promises this will barre mee Et sic de similibus By a release of all Judgements without more words is he Lit. Sect. 507. Co 8. 151. super Lit. 290. that maketh it barred of the effect of any Judgement he hath Of Judgements Of Executions against the relessee for if execution be not taken out he is now barred of it And if the relessee or his land c. be in execution he and it shall be discharged thereof by Audita Querela And by a release of all executions without more words a man is barred of taking or having out of any execution upon any Judgement either before Scire facias or after But if after execution be made by Capias ad Stat. Elegit or fieri facias the Audita Querela plaintife release to the defendant all executions he cannot plead such a release but he must have an Audita Querela and that he may have to discharge him of execution By a release of all appeales are discharged all appeales of Co. super Lit. 287 288. felony of death of robbery of rape of burning of larceny Of Appeales depending and all causes not yet moved also By this release of all advantages it seems actions of debt upon Of Advantages account are discharged Co. 8. 150. By a release of all conspiracies all conspiracies past are discharged Kelw 113. Of Conspiracies and such also as are only begun and shall be prosecuted and perfected after the release are likewise hereby discharged By a release of all forgeries before publication the forgery is Of Forgeries Co. 10. 48. discharged but not the publication and therefore the relessor may take his remedy for that notwithstanding A release of all demands is the best release of all and this Of Demands or Clâ—imâ—s Co. super Lit. 291. Co. 8. 54. Lit. Sect. 501 509 510. word is the most effectuall word of all and doth in deed include and comprehend within it most of all the releases before By a release therefore of all demands without more words are released all rights and titles to land warranties conditions annexed to estates before they be broken or performed and after they be broken Also by this release are released and discharged all Statutes Obligations Contracts Recognisances Covenants Rents Commons and the like Also all manner of actions reall and personall Appeales Debts duties Also all manner of Judgements Executions Also all Annuities and Arrearages of Annuities and Rents And therefore if a man have a title of entry by force of a condition c. or a right of entry into any lands by such a release the right and title is gone And if a man have a rent-service rent-charge estovers or other profit to be taken out of the land by such a release to the tenant of the land it is discharged and extinct And therefore if a termor for yeares grant the land by indenture to A rendring rent and at the end of the first yeare Adjudg B. R. pasc 17 Jac. Wottons case he release to the grantee all demands the rent is hereby extinct during all the time And a release of all claimes it seems is much of the same nature But by a release of all demands or of all claimes is not released Co. 5. 70. any such thing as whereof a release cannot be made as a meere possibility or the like Neither will this release discharge a covenant or promise that Hil. 4 Jac. B. R. Hancocks case adjudge is future and contingent before it be in being Nor a covenant before it is broken and therefore if the lessee of a house covenant to leave it as well in the end of his terme as it was in the beginning of his terme and before the end of the terme the lessor release to the lessee all demands this is no barre to an action brought for a breach of the covenant afterwards And if a man in consideration of a summe of money given to Hil. 6 Jac. B. R. Belcher Hudsons case him by a woman sole assume to her that if shee mary one M that he will pay to her after the death of M one hundred pound by the yeare if shee survive him and shee mary him and the husband release all demands and then die this is no barre to the duty So if one promise a woman that if shee will mary him that he will leave her worth one hundred pound if shee doe survive him and before the mariage shee release to him all actions and demands this doth not discharge the promise And note that all these words are of the same force when they are joined with other words as when they are alone Note If two tenants in common of land grant a rent-charge of Co. super Lit. 267. forty shillings out of it to one in fee and the grantee release to one of them this shall extinguish but twenty shillings for that the grant in judgement of law is severall If one have severall causes of action against two and make a joint release to them this shall be taken to be a release of all 19 H. 6. 4. joint and severall causes of action So if an executor have some cause of action for himselfe and Bro. Release 31. 29. some for his testator and he release all Actions indefinitly this release doth discharge both sorts of actions If the tenancy be given to the Lord and a stranger and to the heires of the stranger and the Lord release to his companion Co. super Lit. 280. all his right in the land this shall enure not only to passe his estate in the tenancy but also to extinguish his right in the Seigniory If there be Lord and tenant of two acres and the Lord release all his right in one of them to the tenant hereby the Perk. Sect. 71. Bro. Release 85. 9 E. 3. services are extinct for both So if one have a rent charge out of twenty acres and release all his right in one acre hereby all the rent is extinct And yet if A lease white acre to B for life rendring rent and afterwards doth release part of the rent this is good only for such part If I be seised of land in fee and I make a lease of it to one for life and after I
another this cannot be a good Devise of the land but perhaps the Devisee may in a Court of equity compell him that hath received the money to assure and settle the land according to the Devise And if Plow 344. Fitz. Devise 7. one devise another mans land this Devise is void but if he after the Devise made purchase this land now is the Devise good If a man bargaine and sell land to me on condition to reenter if he pay Adiudged Powâ—ly Blakemans case me 10l and I covenant that I will not take the profits untill default of paiment and he make a Lease of 6 yeares of it to another and after breake the condition in this case I may devise this land and the devise will be good 14. A Seigniory Rent or the like Perk. Sect. 538. Litt. Sect. 585. 586. Dyer 253. 140. 5. 52. F. N. B. 121. Coo. super Litt. 111. 8. 83. 3. 33. thing is devisable as land is and will passe without the Attu nement Devise of Rent Coâ—â—mon Seignâ—ory or the like of the Tenant The like Law is of a reversion also And a man may devise a Rent de novo issuing out of land or a Rent issuing out of land that is in â—sse before And therefore if a man make a Lease for life or yeares rendring Rent the Lessor may devise this Rent So if if a Rent be granted to one and his heires the Grantee may devise this rent So a man that is seised of land in Fee may devise any rent out of it at his pleasure And therefore if a man that holdeth his land by Knights service in Cheiâ—e by his Will devise any Rent Common or other profit out of it this devise is good and that albeit the Rent or Profit doth amount to the value of the whole land as if one have 3 Acres of land worth 3s by the yeare and he devise 3s Rent out of it this is a good devise of the whole Rent but in this case the Rent shall issue out of two parts of the land and a third part shall be free and not charged with it but he may charge 2 parts in 3 parts of such land at his pleasure And so also it is if a man have lands holden by Knights service and not in Capite and other lands in Socage he may charge two parts of the Knights service land and all his Socage land at his pleasure And if a man have lands held in Socage and no lands held in Capite or by Knights service he may devise what rent he will out of it But a man cannot devise a Rent Common or any such like thing out of another mans land that is none of his owne nor out of that he hath nor And therefore if one devise 10l out of his Mannor of Dale when in truth he hath no such Mannor this Devise is void If a rent be granted to me for the life of I S it Oyeâ— 253. seemes I may not devise this rent but that the Terre-tenant shall Occupant hold it as an Occupant 15. Where a man is seised of a house in Fee and may devise the house it selfe there it seemes he may devise Devise of houses dooâ—es glasse wainscot c. Coo. 4. 63. Perk. Sect. 512. 518. Coo. 11. Rich. Liâ—ords case â—â—lw 88. the doores windowes wainscot or the like Incidents of the house And where a man may devise the land it selfe it seemes hee may devise the trees or grasse growing upon the land Quando licet â—d quod majus videtur licere id quod minus But where the land it selfe is not devisable there such things incident or annexed to or growing or being upon it are not devisable And therefore the tenant in taile for life or yeares of land may not devise the houses or windowes doores or wainscot of houses or trees or grasse being or growing thereupon but this devise is void 16. Where a man Perk. Sect. 500. Dyer Devise of a Vse hath a Use that is not executed by the Statute of Uses but remains at the Common-law he may devise it as he may any other thing And therefore if one be possessed of a Terme of yeares and grant it over to another to the use of the Grantor he may dispose this use See Vses by his Will for it is in the nature of a Chattell But if a man have such a Use in jointenancy he cannot devise it 17. All manner of Swinb part 3. Sect. 5. Perk. Sect 511. 525 goods and chattels reall and personall may be devised by Testament Devise of goods and chattels And therefore Leases for years of lands Grants for yeares of Rent Common or the like Wardships of the bodies and lands of heirs of Tenants by tenure in Capite and by Knights Service Cattell as oxen sheepe horses c. gold silver money plate houshold-stuffe as beds pots panns platters c. corne wooll and implements of husbandry may be devised by Will and not only those a man hath at the time of the Devise but those a man is to have or may have afterwards And therefore it is held a man may give his corne that shall grow in such a ground the next yeare after his death or the wooll or lambs his flock of sheep shall yeild the next yeare after his death and that these Devises are good but if in this case there shall be no such corn growing in that ground or any lambs or wooll arising out of his â—lock that yeare the Legacy is fruitlesse And yet if the Testator devise to I S 20 quarters of corne or 20 lambs and both will that the same shall be paid out of his corne that shall grow or out of his â—lock the next yeare and there be not so much corne or not so many lambs or not any at all growing or arising yet this is a good Devise and the things must be paid In like manner if a man give to I S a horse or a yoke of oxen in this case albeit the Testator have neither horse nor yoke of oxen yet the Devise is good and must be performed 18. Things in action as debts and the like albeit they be not grantable by deed in the life time of the party yet are 〈◊〉 of debts and things in action possibilities and incertainties they devisable by Will And therefore if the Testator doth by his Will give any debt due to him on an obligation or on a contract or the like this Devise is good And the thing devised may bee had thus the Testator may if he will make the Legatury Executor as to that debt or if he do not the Legatary may sue the Executor in the Spirituall Court or in some Court of equity and thereby compell the Executor either to recover it himself and so to pay it to the Legatary or to give the Legatary power to sue for and recover it himselfe in the Executors
except it be so called the Devise is void And yet by the Devise of the use profit or occupation of land the land it selfe is well devised and by the Devise of land it selfe the reversion thereof may be devised But if one intending to devise a horse doth devise an oxe or meaning to give gold doth give apparell these Legacies are void unlesse his meaning may appeare by some circumstance to be otherwise as if a man have but one horse and he be called Arundell and he devise his horse Bucephall this Legacy is good enough And if a man give all his mâ—ny in such a Chest when in truth there is no mony in that Chest or give to another the 10l which I S doth owe him when in truth I S doth not owe any such money this Devise is void And yet if the Devise bee thus viz. I give â—o A B 10l and I will that the same bee paid of the money I have in such a Chest or of the money which such a man doth owe me in this case the Devise is good albeit theâ—â—â—e not any money in the Chest or owing And if one give 10l remaining in such a Chest whereas in truth there is but 5 l. in the Chest in this case the Legacy is good for the 5 l. But error and mistake in the quantity and quality of the thing devised when the same for the substance of it is certaine doth not hurt And therefore if the Testator meaning to give the fourth part of his goods give the one halfe or meaning to give but 50 l. give 100 l. or è converso meaning to give a greater doth give a lesse quantity or sum in these cases the Legacy is good and the Legaâ—ary shall have as much as the Tâ—stator did meane If a man give his white horse when in truth he hath but one horse and that is black this is a good Devise of this horse And if the thing devised be under such generall words that Incertainty in the thing Devised Swinb part 7 cap. â—0 the minde of the Testator cannot bee knowne by it the Devise is void And therefore if the Testator say I doe bequeath something or I bequeath a substance or I bequeath a body or I bequeath or the like these Devises are void for incertainty So if he say I doe give lands or I doe give goods these Devises are void And yet if the Testator give a horse an oxe a gold chaine or the like indefinitely in these cases the Devise is good albeit he have no such thing But if one devise thus I give lead money wheat oyle or the like and say not how much or what quanitity this Legacy is void for incertainty or at least the Executor may deliver what quantity thereof he will and this shall satisfie the Legacy 7. As Seventhly in respect of the Tenures and conditions causes and ends of the Devise Swinb 2â—9 touching the terms of a Devise it must be known That if one devise any thing to wicked ends or upon wicked conditions as to the end that the Devisee shall kill a man or because he hath killed a man or the like these Devises are void in like manner as it is when the cause or motive is false as because one is my Cousin or hath lent me money I devise to him 20 l. and hee is not my Cousin or did not lend me money these Devises are void And as touching the rest of the properties of a good Devise see them before Coo. 3. 36. in the properties of a good Testament And here by the way A Caveat for making of Testaments be advised if thou hast land to settle rather to doe it by act executed by advice of learned Counseâ—l in thy life and health-time and therein adde such conditions and provisoes of revocation and otherwise as thou wilt or if thou wilt doe it by Will then doe it in thy perfect memory and by learned advice Let the Will bee indented and of two parts and leave one part with a friend that it be not suppressed after thy death Let there be credible Witnesses to the publication thereof and let their names be subscribed to it Let the whole Will be written with one hand and in one peece of paper or parchment for feare of alteration addition or diminution Let the hand and seale of the Devisor be set to it And if it be in severall parts let his hand and Seale and the hands of the Witnesses be to every part If there be any rasing or enter-lining let there be a Memorandum of it And if thou make any revocation of thy Will doe it by good advise and by writing Vox audita perit Litera scripta manet The generall rules for the Exposition of Wills are these That they Plow 540. Coo. supeâ— Litt. 322 8. The Exposition of Testaments and Devises and how they shall bee construed and taken Devises of Land First in respect of the peâ—son that is to take by the Devise and what when and how he shall â—o take by the Devise must have a favourable and benign interpretation and as neare to the minde and intent of the Testator as may be and yet so withall as his intent may stand with the rules of Law and bee not repugnant thereunto It is said to be therefore a maxime of Law Quod ultima voluntas testatoris perimplenda est secundum veram intentionem suam according to these Verses Sed legum servanda fides suprema voluntas Quod mandat fierique jubâ—t parere necesse est If a Devise be made of land to I S and the heirs males of his Termes of the Law tit Devise Coo. super Litt. 25. Plow 414. body by this Devise the sonnes and not the daughters of I S shall have the land And if a Devise be made of land to I S and the heirs Females of his body by this Devise the daughters and not the sonnes of I S shall have the land And yet it hath been said in these cases that if in the first case the Devisee have issue a daughter who hath issue a sonne or in the last case hath issue a sonne who hath issue a daughter that this sonne and daughter shall take by this Devise in these cases but it seemes the Law is otherwise If a Devise be made of land to I S and his heires males by this 27 H. 8. 〈◊〉 Grant Devise I S hath an estate Taile but otherwise it is of such a limitation by Deed for if one by Deed give land to another and his heirs males by this the Donee hath a Fee-simple and his heirs generall shall have it If a Devise be of land to I S and to the eldest heirs females of Coo. supeâ— Litt. 27. his body by this Devise all his daughters and not one of them only shall take it So if one devise Gavelkind-land to a man and his eldest heirs
Administration of her goods and chattels And all these persons that may be Executors may be Executors by that name See before at Numb 7. Swâ—b 29â— as they may be Devisees And yet if there be two of one name and the Testator make one of that name his Executor and doth not say neither can it be discerned which of them he doth intend in this case neither of them shall bee Executor But it is said that an Heretick Apostaâ—e Traitor Felon Recuâ—ant Swinb 2â—â— 223. Coo. 9. 39. convict Sodomite Libeller Bastard begotten in Incest or a notorious Usurer cannot be an Executor And that if a man be for any of these causes uncapable at the time of the death of the Testator when the Executor is to take upon him the Executorship that hee is for ever uncapable but it hath beene held â—roo Non-ability 18. Fitz. Excomengment â—3 by the Common-Law that a person attaint may bee an Executor The most apt and proper words whereby to constitute an Executor 20. By what words a man may be made an Executor and what words in a Testament shall make a man full Executor or not but a Coadjutor or Supravisor and who shall be an Executor by such words Swinb part 4. Sect. 17. â—8 1â— Dyer 〈◊〉 19 H. 8. 8. 21 H. 6. 6. Fitâ— Executor 43. â—roo Executor 98. 73. Fitz. Executors 113. 121. Briefe 999. are I make I S my Executor or I make I S the Executor of my Will c. But an Executor may be constituted by other words equivalent or by implication And therefore if a man say in his Will I will that I S shall be my generall Administrator or I will that I S shall administer all my goods or I will that I S shall dispose all my goods and chattels or I commit all my goods to I S or I commit all my goods to the disposition of I S or I make I S Lord of all my goods or I make I S Legatary of all my goods or I leave all my goods to I S or I give all my goods to I S and make no other Executor in all these cases I S by intendment of Law is made Executor of all the goods and chattels of the deceased So if a man say Of all my goods I make I S and say no more but omit the word Executor by these words I S is made Executor So if one say I will that I S shall dispose all the goods that are in his hands by these words I S as to those goods is made Executor So if I deliver goods to I S to keep untill my death and then to distribute ad pios usus or for my soule hereby I S shall be my Executor if I D will not by this I D is made Executor in the first place by implication and if he refuse then I S shall be Executor But if a man make A and B his Executors and say I will that I S shall be a Coadjutor or helper to A and B ad distribuendum or ad administrandum bona mea or I will that I S shall be Surveyor or Supravisor of my Will in these cases and by these words I S is not made Executor with A and B. And yet if he say I will that I S shall have Administration of my goods or bee Executor with A and B or be Administrator with A and B in these cases and by these words I S is made joynt Executor with A and B. And if one supposing I S to be dead say I will that I D shall be my Executor because I S is dead in this case and by these words I S if he be living is made Executor first and if he refuse I D shall be Executor If one make A B and C his Executors and 〈◊〉 6. 6 7. then saith afterwards And I will that B shall administer my goods alone or that B only shall administer my goods it seemes in these cases B only is made Executor and that A and C are not made joint Executors with him In all Cases where a man hath any goods or chattels to administer 〈◊〉 Where and in what â—ase an Administâ—ation is grantable o◠〈◊〉 And to whom it doth belong to◠〈◊〉 to whom 〈◊〉 must 〈◊〉 Coo. 9. 〈◊〉 Plow 276. Doct. Stud 78. 132. Dyer 236. 〈◊〉 H. 7. 13. and he doth die a naturall or civill death and dyeth inâ—estate either in deed i. e. doth make no Will at all nor appoint any Executor or in Law i. e. that doth make one or more his Executor or Executors and he or they so appointed is or are such persons as are not in being or if they be in being is or are so incertainly named that it cannot be discerned whom the Testator doth intend or if he is or they be well named he is or they are all incapable by reason of some legall impediment or if otherwise they bee capable they doe all die before the Will be proved or if they live if being cited to come in before the Ordinary to prove the Will they either refuse to appear or if they doe appeare they refuse to prove the Will and to take upon them the Administration of the goods and chattels of the deceased in all these cases the Ordinary may and ought to grant the Administration of all the goods and chattels of the deceased to him that of right it doth belong unto according to his discretion And if a man make a Will and after the death of the Testator the Executor prove it and then die intestate the Ordinary must grant the Administration of the goods of the first Testator not administred in the hands of the Executor to some competent person or persons according to his discretion but where a man hath no goods and chattels to administer i. e. either he hath none or if hee have they are none of his or if they are there is an Executor named in rerum natura capable and well named and he doth accept or at least hath not refused the Executorship in these cases the Administration ought not to be granted or if it be granted it will be void or voâ—dable at the least And where an Administration is grantable it is to be granted by and had from the Ordinary of Stat. 31 Ed. 3. chap. 11. 21 H. 8. c. 5. Fitz. Administration 7. Litt. Bâ—oo Sect. 276. See infra Numb the Diocesse where the party whose goods are to be administred lived at the time of his deathâ— for regularly he that shall have the Probate of a Will in case where a man doth make a Will shall have the granting of the Administration of his good and chattels in case he die intestate And therefore if all the goods and chattels of the party deceased be within the same Diocesse wherein the intestate lived and dyed the Ordinary of that Diocesse or his lawfull Deputy or Commissary or the Arch-deacon of the Diocesse
and dye these shall go to the Executor or Administrator not the successor of such a person And albeit such things be granted to them and their successors yet their executors and administrators and not their successors shall have it But if a Corporation aggregate as Dean and Chapter Mayor or Cominalty and the like have any goods or chattels in right of their Corporation and any of the Heads or Members thereof dye the Executors or Administrators of such person shall not have them but they shall continue in succession with the Corporation An Executor or Administrator shall have the benefit of a pardon Coo. 6. 80. Dyer 201. granted to the deceased and shall have advantage of any error in any outlawry against the deceased and have restitution of the goods forfeir thereupon The Executor or Administrator of a woman that hath a husband shall have by right of his Executorship or administration all Actions Husband and Wife Coo. super Litt. 351. Plow 294. 192. Rights and Titles to any chattels and possibilities and things of that nature which the wife had before the marriage and which sell to her during the marriage for these things the husband shall not have by the intermarriage after his wives death as he shall have all the rest of her goods and chattels execept he have them as executor or administrator to her as he may be And if such a woman have any goods or chattels as Executrix to another her executor or administrator not her husband shall have these also for she hath these goods in anothers and not in her own right If I have any goods or chattels in Iointenancy with another as if a lease be made of lands to me and another for years or a horse or other 〈◊〉 Sect. 281. Perk. Sect. 525. 526. Litt. Sect. 320 321. chattell personall be given or granted to me and another in these cases if I die my executor or administrator shall not have any part of these goods or chattels but the other surviving Iointenant shall have them all But otherwise it is of the goods and chattels that I and another have in Common And therefore if I and another have goods and chattels in that nature as before and he or I grant that which doth belong unto us thereof unto a stranger in this case the stranger and him of us two that hath kept his part are tenants in Common of the things and therefore if either of us die the part of him that dieth in the goods and chattels shall goe to his executor or administrator and not to the other Tenant in Common If I have a Judgement for land in a reall or mixt action and for damages recovered in the same Suit and I dye in this case my executor 〈◊〉 Executor 53. 84. â—17 or administrator not my heire shall sue execution for and recover the damages but not for the land So if I recover damages against another for the detaining of my Charters and dye my executor or administrator shall recover the damages but the heire shall have the Charters and the heire must sue his Scire facias for the Charters ere the executor can sue for the damages Also if I recover any debt or damage in any personall action my executor or administrator shall recover and have this See more infra at Numb 39. The power and interest which the Executor hath is wholly by Coo. 6. 18. 9. 38. 5. 27. Plow 280. 9. Ed. 4. 47. 36 H. 6. 7. Fitz. Administrator 2. 6. the Will And hence it is that an Executor whether he be absolute 26. What an Executor may doe by vertue of his Executorship And the power of an Executor Administrator oâ— Ordinary or conditionall whiles he is Executor may do any thing as Executor except only sue for debts and duties due to the Testator aswell before the Probate of the Will as he may do after for before the Probate he may enter into and seize the goods and chattels whatsoever they be or give power to another so to do and if any of them be taken or kept from him he may have an action of trespasse or a replevin to recover them he may give or sell any of the goods or chattels he may pay any of the debts due from and receive or release any debts due to the deceased But it is otherwise in the case of an Administration for in as much as his power and interest is given to him wholly by the Administration therefore he can do nothing untill the Administration be granted And yet in this case as to the goods taken away before the Administration the Administration shall have such a relation as to give the Administrator an action for them But otherwise after the Administration is granted the interest and power of the Administrator is equall to and with the power and interest of the Executor And yet it is otherwise of the power and interest of the Ordinary For howsoever it seemes by the ancient Common Law he might seize Coo. 8. 135. 9 39. Dyer 255. Westm 2. cap. 20. 31 Ed. 3. c. 11. preserve give grant and dispose the goods of the intestate to pious uses yet might he not sue for the goods or debts due to the intestate no more then he might be sued for any debt due from the intestate and at this day he may only keep and preserve the goods of the deceased until administration be granted and sue him in the Court of the Ordinary that doth detaine the goods from him and perhaps may sue him that shall take the goods out of his possession for he may not sell or give the goods of the deceased nor receive or release any debts for in case where there is an Executor made that is capable c. he is not to meddle at all with the estate untill the Executor refuse and where there is no Executor that the party is dead intestate the Ordinary is presently to commit the Administration to the nearest of the kinred which when he hath done his power is at a end for it is doubted of some whether he may repeale an Administration without cause or not but it hath been clearly held by all that he may not dispose of the estate afterwards and that he hath not power to enforce the Administrator to give portions to children out of the estate and that if he do goe about it either before or after the granting of the Letters of Administration the Administrator may have a Prohibition * Hill 13. Ia. Co. B. Henslowes case Trin. 3. tac Co. B. Davis case Hill 2. Car. Co. 9. Fotherlies case And accordingly divers have been granted And yet notwithstanding it seemes this course is usuall and Prohibitions not often granted at this day * Litt. Sect. 69. Plow 281. Broo. Executor 129. An Executor or Administrator may after the death of the deceased enter into the house where the deceased lived and where he
plead any such Iudgement c. in barre of any other debt sued for by any other Creditor the Creditor may by speciall pleading set forth this matter of Covin and avoid the plea and barre of the Executor or Administrator If one Creditor whose debt is in equall degree and presently due and to be paid begin a Suit against the Executor or Administrator for his debt and hee hath notice that the Suit is begun against him or the Action is laid in the County where the Executor or Administrator doth dwell or as some have said in London in both which cases it seemes he is bound to take notice thereof at his perill and after this Suit begun hee doth make voluntary payment of another debt in equall degree in all respects for which no Suit is begun this is a devastavit in the Executor or Administrator and if he have not Assets to satisfie him who began his Suit first he shall be compelled to satisfie so much thereof as he doth voluntarily pay to the other and that out of his own estate And yet an Executor or Administrator may make voluntary payment of any debt due by Record as by Iudgement Statute c. after such a Suit begun and justifie it If two Creditors in equall degree to all purposes begin to sue for their debts at one time in this case the Executor or Administrator cannot safely make voluntary payment to either of them unlesse he have enough to pay them both but his safest way is to pay him first that in a due and legall proceeding for he may not covinously help one of them to a Iudgement sooner can first recover it by Iudgment and Execution And yet if in this case no Suit be begun the Executor or Administrator may make voluntary payment to either of them in equall degree of his whole debt albeit he have no Assets left to pay unto the other any part of his debt If A and B be two Creditors in equall degree and A begin his Suit first and after B doth begin his Suit and it happeneth that B bonâ fide without any Covin or agreement between him and the Executor or Administrator doth get Iudgement and Execution first in thiâ— case the Executor or Administrator may make payment â—o B first of all But if the Executor or Administrator doth by any Covin and agreement help B to his Iudgement and Execution first and by this meanes he is first satisfied if there be not Covin enough left to satisfie A he must satisfie him out of his own estate If two Suits begin at or about one time upon two severall Obligations and the Executor is forced to plead to them both before either of them hath a Iudgement so that he cannot plead the Iudgement that the other hath against him and he hath not Assets to satisfie both the debts sued for and after the Plaintiffs in both the Suits get Iudgement and Execution Quaere what the Executor or administrator may doe in this case And here note by the way that it is policy for a Creditor that hath cause to sue an executor or administrator to bee doing bâ—times and to get judgement and execution assoone as he may for it falleth out in this case That he that doth first come shall bee first served After all the debts are paid in such order and manner as before then is the executor or administrator to pay and to deliver the Legacies and herein the executor may preferre himselfe so that if any Legacy be Doct. St. 34. Plow 54â— Swinb 110. 114. given to him he may detaine and deduct it albeit there be nothing left to discharge the Legacies given to others and after he hath satisfied himselfe he may satisfie and deliver what Legacies he will albeit there bee not enough to satisfie all the Legatees or he may pay to each of the Legatees a part of their Legacy and deduct a part out of every Legacy where there is not enough to satisfie all the Legacies But if any particular thing as a Lease or a horse or the like be given this must be delivered accordingly and may not be sold by the executor or administrator to pay others all or any part of their Legacies and if there be enough to pay all the Legacies they must be paid all according to the Will and it is said by some that if an executor or administrator make no Inventary of the goods that he must pay all the Legacies whether he have Assets or not The last thing an executor or administrator is to take care of Swinb Part. 6. Sect. 17. is to make an account for it is â—eld that an executor or administrator Fifthly in making an Account is not bound in Law or Conscience to make restitution for personall wrongs wherein this is to be known That the Ordinary may if he will call the executor or administrator to account concerning the goods and chattels of the deceased either generally or particularly as the case requireth and that with or without the Creditoâ—s or Legataries instigation within a year or what time he will unto which account he may call all the Crâ—ditors and Legataries and therein the executor or administrator must shew what he hath received and what he hath laid out and provâ—â—â— in such sort as the Ordinary shall like And then if it be found he hath faithfully and fully administred the Ordinary may acquit him of the burthen and then hee is discharged of all Suits in the Spirituall Court but this account and discharge will not help nor availe him at all to discharge him of Suits at the Common-Law The Office and duty of the Ordinary after the death of any Coo. 5. 83. 9. 39. Litt. Broo. Sect. 233. F. N. B. 120. Dâ—er 23. Doct. St. 132. person within his Diocesse is if he hear of any Will made and any Executor appointed to cite the Executor and to compell him to come in and prove the Will and to accept and take upon him the administration of the goods or to refuse it and if the Executor Broo. Executor â—0 Testament 27. Stat. 31. Ed. 3. c. 11. 13 Ed. 1. c. 19. 21 H. 8. c. 5. refuse or if there be a Will made and no Executor appointed the Ordinary must commit the administration cum testamento annexo to whom he shall think fit and take Bond of the admistrator to performe the Will And if there be no will made he is to grant the administration of the goods to the next of kinne if he or they require it and if not to whomsoever besides shall desire it or if no body seek it he may grant letters to whom he will ad colligendum bona defuncti and thereby take the goods of the deceased into his own hands and then it seemes hee is to pay therewith the debts and Legacies of the deceased so farre as the same will reach in such order as the Executor or administrator is
name But if it be such a cause of action as is altogether uncertain as where a man may have an action against another for taking away his goods or to compell him to make an account or the like this is such a cause of action as is not deviseable And yet possibilities and incertainties are in divers cases devisable Perk. Sect. 527. Litt. B100 Sect. 437. Dyer 272. Plow 520. And therefore if one have money to be paid him on a Mortgage he may devise this money when it comes as if I enâ—eosse a stranger of land upon condition that if he do not pay me 20l. such a day that I may reenter in this case I may devise this 20l. if it be paid and the Devise is good albeit it be made before the day of paiment come Childs case 17. Ia. B. R. And if a man be possessed of a Terme of yeares and devise all the residue of that Terme of yeares that shall be to come at the time of his death this Devise is good and yet such a Grant by deed is void Grant * But a meer possibility and a thing altogether incertain is no more devisable by will then it is grantable by deed 19. Emblements i. e. the Devise of Emblements Perk. Sect. 520. 521. c. See in grantâ— corne that is sowen and growing upon a mans ground at the time of his death and which himselfe should have reaped if he had lived to the harvest as in most cases he shall where he doth sowe it are devisable And therefore if a man have land in Fee simple Fee taile for life or yeares and sowe it with corne he may devise the corne at his death to whom he please And yet if Lessee for yeares sowe his land so little while before his Terme expire that it cannot be â—ipe before the end of the Terme and he die it seemes he cannot devise this corne for if he had lived he could not have reaped it after the end of the Terme 20. Obligations Counterpanes of Leases and Perk. Sect. 527. such like things also are devisable but in this case the Devisee cannot Devise of Obligations Counterpanes of Leaseâ— c. sue upon the Obligation in his own name nor enter for the condition broken upon the Lease if there he cause but he may cancell give sell or deliver up the Obligation or Counterpane to the Obligor or Lessee And finally whatsoever shall come to the Executor See inâ—â—â— in Numb after the death of the Testator in the right of his Executorship may be devised by the last Will and Testament of the Testator 21. Devise ofâ— the things a man hath in Iointure wiâ—h another Perk. Sect. 52. Litt. Sect. 287. Doct. St. 167. The goods and chattels that a man hath joyntly with another are not devisable And therefore if there be two Iointenants of goods or chattels as where such things are given to two or two do buy such things together and one of them devise his part of the things to a stranger this Devise is void Insomuch that if in this case the Testator make the other Ioyntenant his Executor the Will as to this is void and he shall not be charged as Executor for those goods but he shall have them altogether by right of survivorship 22. The Devise of the things a man hath in anothâ—â—s right Plow 525. B100 Administrator 7. 〈◊〉 Adm. 〈◊〉 goods and chattels that a man hath in anothers right are not devisable and therefore an Executor or Administrator cannot devise the goods and chattels he hath as Executor or Administrator for such a Devise is void Howbeit the Executor may appoint an Executor of the goods of the first Testator which the Administrator cannot do And of the profits that do arise by the goods and chattels the Executor or administrator hath during the time of his Administration he may make disposition The goods and chattels belonging to Colledges and Hospitals may not be devised by the Testaments of the Masters or governours thereof noâ— the goods and chattels belonging Doct. St. lib. 2. c. 39. Perk. Sect. 4â—6 49â— 49â— to other Corporations by the Mayors Bayliffes or Heads thereof * And the goods and chattels that Churchwardens have in the right of the Church are not devisable * Perk. Sect. 560. Doct â—t c. 7. All the chattels reall that a man Husband and wife hath in the right of his wife by her means and all the Obligations that are made to her alone before or during the time of the Coverture and the chattels reall or personall that his wife hath as Executrix to any other are not devisable by the Testament of the husband But all the chattels personall that a man hath by his wife which she hath in her own right and the debts due upon Obligations made to the husband and wife both during the Coverture are devisable by the Testament of the husband 23. Such things as are annexed and incident Devise of things that are incident and annexed to some other thing to a Freehold or inheritance so that it cannot be severed from Perk. Sect. 526. Relw. 88. See before it by him that hath the propertie of them as wainscot and glasse to houses and the like are not devisable but in such cases where the thing it selfe to which it is annexed is devisable 24. The goods and chattels that are another mans are not devisable and therefore Plow Granthams case Câ—o. super Litt. 185. Coo. super Litt. 308 Devise of things that are not the Devisors or belong not unto his Executor if a man give another mans horse it is is a void Devise So if one devise the things that by speciall custome of some places as the heire loomes do belong to the heire this Devise is void for it is not devisable from him 25. If a Bishop have a Ward belonging to his Trin. 13. Ia. Curia B. R. Bishoprick fallen he may devise it but if a Church of his become void in his life time he cannot devise the Presentation If a Parson of a Church have the Advowson in Fee and he devise that his Executors Devise of a Preâ—entation to a Church two or three of them shall present at the next avoydance this is a good Devise 26. All these things before that are devisable Swinb part 7. c. 5. Plow 525. Perk. Sect. 500. when they are devised must be named and devised either by their proper name or otherwise described by some other matter whereby Mistake or error in the 〈◊〉 devised the mind of the Testator may be known and discerned for if he erre and mistaken in the name or substance of the thing devised or it be so incertainly devised and described that it cannot be perceived what he intendeth the Devise is void And therefore if one devise a piece of ground by the name of a Mesuage