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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A65445	The office and dutie of execvtors, or, A treatise of wils and executors, directed to testators in the choise of their executors and contrivance of their wills with direction for executors in the execution of their office, according to the law, and for creditors in the recovery of their debts : expressing the duty, right, interest, power and authority of executors, and how they may behave themselves in the office of executorship : with divers other particulars very usefull, profitable, and behovefull for all persons, be they either executors, creditors or debtors : compiled out of the body of the common-law, with mention of such statutes as are incident hereunto.	Wentworth, Thomas, 1568?-1628.; Doddridge, John, Sir, 1555-1628.	1641 (1641)	Wing W1358; ESTC R15205	180,173	328

if one part be revocable so is another also And thus Revocation may spread it selfe over the whole nay doubtlesse the whole Vno flatu may be revoked as well as by parts even as a fagot may be put wholly into the fire as well as sticke by sticke And as the Velleities or disposing parts of the Will are revocable and revivable by new Publication as aforesaid so is also the constitution of Executors As if one of the Executors names be stricken out and afterwards a stet be written over his head by the Testator or by his appointment now is he a revived Executor So if the Testator expresse by word in the presence of Witnesses that the party put out shall yet be Executor but now I meane where the Executors name is not so blotted out but that it may be read and discerned for else the stet is upon nothing and if the Verball reaffirmance should renue his Executorship then must the Will be partly in writing and partly Nuncupative his name not being to be found in the written Will. Of the State of things instantly upon the Testators Death before any Will proved Here we will consider these severall things 1. What is wrought by a gift of a thing certaine and knowne as the White Horse the Red Cow c. 2. What by a Bequest to an Executor 3. What wrought by a Release in the Will to a Debtor 4. What by making a Debtor or Creditor an Executor AS touching the first viz. the bequest of a Chattell reall or personall which the Testator had in possession notwithstanding that if the said Testator had by his Deede or writing or but by word in his death-bed or before given these his goods and dyed before they had beene taken he to whom they so were given might have taken them yet in this case of gift by Will neither can the Legatee viz. he to whom they are bequeathed either take them or recover them from the Executor or a stranger taking them by any Suite at the Law for that he hath no property in them yea if the Bequest be to himselfe who is made Executor be it of Lease Plate Cattell c. They shall not vest nor settle in him as Legate but as Executor untill expresse or implyed election but made to have and take the same by way of Legacy And the reason in both case is this viz. That the Lawe preferres debts and the satisfaction of them before Legacies and ties Executors also to that rule and therefore will transferre nothing from or out of the Executor till he having considered of the State of the debts to be paid and goods out of which the same are to be paid shall finde that safely this or that legacy may take effect without making any defect in payment of debts or drawing upon him and his owne goods any damage or losse as a waster and thereupon shall assent to such Legacy Thus now is the Law taken but heretofore some opinion hath runne otherwise viz. That hee to whom any Bequest was made of a thing knowne and certaine might take it without any assent of the Executor and that when to the Executor himselfe any good or Chattell moveable or immoveable was bequeathed In case there were otherwise sufficient goods for satisfaction of debts the same should instantly upon the Testators death without any act or election by the Executor be transferred into and unto him in his owne right as a Legacy and not remaine in him as Executor As for summes of money bequeathed or so much in Plate or Ringes it is evident that they must be had by the delivery of the Executor Yet hath the Legate such an interest before delivery as that dying before payment it will goe to his Executors But as I take it no such to whom any thing certaine is given by Will can make any gift or grant of it before the Executor have assented to his having thereof Nor perhaps will the Executors assent after the grant have such relation as to make good the grant precedent why so yet more then an atturnement of a Leassee which is alike assent to the grant of another And Quere if by the out-lawry of the Legatee before the Executors assent this thing bequeathed be forfeited If without just cause an Executor will refuse to assent he is compellable by Law Spirituall or Court of Conscience yet if Spirituall Court presse to doe where is just cause to stay a Prohibit lyeth ut Credo for since executors stand liable to recovery of debts against them by Common Law It is reason that Law enable them to keepe wherewith to pay And here yet note some seeming opposition in Law for where before great difference was shewed betweene a Devise or Bequest and a gift or alienation executed in ones life time Yet the Lord Deyar reports it to be resolved that where a Lease for yeares was made upon condition that the Lessee should not Aliene in his life time that yet a Bequest of this Lease by his Will was a breach of the Condition as being an alienation in his life time 3. Of a discharge by Will to a debtor some question may be whether to perfect and make good this so as the debtor may plead it in Barre there be not requisite as in the former an assent of the Executor On the one side since this giving is a forgiving for he to whom it is bequeathed cannot otherwise have it then by way of retainer it may probably be said that here needes no such assent of the Executors as in the case where any thing is to be transferred for here is rather an extinguishment and an exoneration then a passage of a Chattell by way of Donation On the other side it is probable that it being but a Bequest and so a Legacy since debts are in Law and Conscience to be satisfyed before any Legacyes that therefore the Executor having not sufficient otherwise to satisfie his Testators debts may sue for this debt and refuse to suffer it to passe away as a Legacy And to this opinion doe I encline as best for Creditors and satisfaction of debts is by Law respected as an act greatly concerning the Testators soule But some will perhaps make a contrary doubt that although there be an assent of the Executors to this discharge yet it will not amount to a legall release for that a debt at least if it be by speciallty cannot be released but by Deede and a Will is no Deede for a Seale is not necessary thereunto though it be fit and convenient whereto I give this answer that a Will though it be not properly and legally a Deede for it may be good enough without a Seale which is an essentiall part of a Deede yet hath it the force and effect of a Deede for as a Release cannot be made but by Deede so neither can an Estate or Interest though but for yeares

by a wrongfull person and in Suttons case it was expresly held that each Executor should answer for so much as he wasted Now for the fift and last point viz. how and in what manner reliefe shall bee had upon this point of wasting for him to whom it pertaines first this is to bee observed that in case where the verdit passeth directly against the plaintife no devastation can come in question for that no judgement being for the plaintife no writ of execution can issue and therefore if upon the issue of fully administred it shall appeare that there hath beene a devastation which causeth assets to faile then must the Iury finde that the defendant hath assets and not finde a devastation as was resolved in the Kings Bench in the late Queenes time betweene Hankeford and Metford for there the jury finding a devastation viz. a surrender of a lease for yeeres left by the Testator it was held voyd and nugatory and was not regarded by the Court which said that must come in by the Sherifes returne viz. upon the Fieri fac Thus assets being found in the Executors hands judgement is given for the plaintife to recover his debt and to have it levied of these assets nor is this finding of them by a jury against truth though they bee wasted and so not to bee had in kind for the Executor hath them in right since hee hath not rightfully parted from them according to the rule Propossessore habetur qui dolo or injuria desiit possidere As in the case first put this wasting cannot come in question for want of a judgement for the plaintife so also where the judgement it selfe extendeth to the Executors owne goods by reason of some false plea whereof wee shall after consider for since that the consequence and effect of a vastation is but to make the Executors owne proper goods liable to the debt of the Creditor this is altogether needlesse where the judgement it selfe hath layed hold on his goods But now in case where the judgement extends onely to the Testators goods in the Executors hands let us finde the way to releive the Creditor in case the Testators goods bee wasted by misadministring or otherwise for hereabout the right way hath often beene missed and againe easily may bee In the latter end of the late Queenes time this course was taken viz. the Sherife returning generally that the Executor had no goods a surmise was entred that the Executor had converted to his owne use the Testators goods whereupon a writ was awarded to the Sheriffe to enquire thereof by jury or enquest which he did and returned that it was found that the executor had wasted the goods and thereupon a Scire facias was awarded against the executor to shew cause why execution should not be of his owne goods and upon two nihils returned execution was so awarded but a writ of error was hereupon brought And although it were said for defence of that course that it was usuall in the Cōmon Pleas and more favourable than the other course where the Sheriffe only returneth the wasting or is sole judge thereof whereas here it was found by an inquest of Jurors and thereupon a Scire facias awarded yet did the Court resolve the contrary and reverse this execution as erroneous For it was said that upon the Sheriffes returne of nulla bona viz. that there were no goods of the testator to be found the plaintiffe should have a speciall writ of Fieri facias willing the Sheriffe to levie the summe recovered either of the goods of the testator or if it could appeare that the executor had wasted the testators then to levie it of his own goods and this way as was said the executor hath good remedy by action against the Sheriffe if without just cause hee levie it of his goods but the other way viz. when inquest is thereupon taken the remedy failes since neither sheriffe doing according to the inquest can be punished nor the jurors finding falsely are subject to any attaint it being no verdict upon issue joyned but an inquest of office which excludeth also all challenge of jurors And whereas that booke mentions the Sheriffes subjection to action onely in case of his mis-feasance or doing wrong I conceive that hee is likewise suable for omission or nonfeasance in this case viz. for not levying the debt upon the executors owne goods where proofe is made of his wasting And where the booke mentions this Fieri facias to bee in this manner upon the Sheriffes returne in a Scire facias doubtlesse the booke therein is misprinted and should be a Fieri facias for in a Sciri facias the Sheriffe can returne nothing but that he hath warned the party or that he hath nothing where by he may be warned This then is the course there prescribed that first a generall Fieri facias go out and that thereupon the Sheriffe returne generally that the defendant hath no goods of the testators and that thereupon the said speciall writ is to issue yet in the beginning of the late Queens time the verdict passing for the plaintiffe upon the issue of fully administred the Sheriffe was not permitted to make such a generall return of no goods to be found of the testators but was inforced by the Court upon good advisement either to leavy the debt or to returne a Devastavit and so was done at last by the Sheriffes of London much against their minds and therupon went out a writ to leavy the debt of the executors owne goods first into London and after into Devonshire upon a Testatum that the executor had goods there And it was there said that if no goods could bee there found then the plaintiffe might have a Capias to take the executors body in execution or an Elegit for the moiety of his lands But certainly I cannot find except with a difference how this course of inforcing the Sheriffe to doe one of these two can be just as neither could Justice Fulthorp in the time of King Henry the sixth approve it For a Jury of one County may finde assets in another County as was resolved in the time of King Henry the eight which yet was understood of goods moveable and not of lands This then thus being if a Jury of Kent find assets which be in London or Essex how can the Sheriffe of Kent where the action was laid leavy the debt recovered by or out of these goods or since he cannot why should he be compelled to make a false returne of a wasting when the goods remain unspent and unwasted in another County Why rather should hee not bee suffered to returne according to truth that there is nothing within his Countie or Bayliwicke whereof the debt may be levied since even his oath tieth him to make a true returne nor is this contrary to the verdict finding assets generally and this so returned upon

to the one and by quick confession of the others action for he is not bound against his will to stand out in sute and expend costs where the debt is cleere nor is this covi●e but lawfull discretion which conscience will also approve some good consideration inducing Nay after sute commensed yet untill the executor have notice thereof he may pay any other creditor and then plead that he hath fully administred before notice Nor is the Sherifes returne of summons or distres sufficient cause of notice for the summons might perhaps bee upon his land but if it were to his person it is notice sufficient and then to save himselfe hee must say that he was not summoned till such a day before which hee had fully administred yet doubtlesse the executor may be arrested at the creditors sute in some sort which yet shall bee no sufficient notice of this debt As for the purpose if hee bee sued by Latitat out of the Kings bench this supposing a trespas gives no notice of a debt so also of a Subpaena out of the Exchequer but the originall returnable in the common plees expresseth the debt and so in some sort doe the proces thereupon And therefore it seemes by some bookes that if it bee laid in the same County where the executor dwels he must take notice of it at his owne perill But this I take not to bee Law nor is there any great opinion that way and although to make it more cleere the executor in King Henry the fourth his time estranging himselfe from notice of the sute before payment to others did alledge that the action was layed in a forren Country that is no great proofe that if his abode had beene in the County where the action was brought hee must have taken notice but thus it was cleerer and a little surplusage hurts not Now betweene a debt by obligation and a debt for rent or dammages upon a Covenant broken I conceave no difference nor any priority or precedency but it is as the executors discretion to pay first which he will as if all were by bond So also of rents behinde and unpaid as I conceave but touching them principally intending rents upon leases for yeeres divers considerations are to be had and some distinctions to be made as first betweene rent behind at the time of the testators death of which that before said is to bee understood and that which groweth behind after next betweene sute for the rent by action of debt and by distres and avoury As to the first difference if the rent grew due since the testators death then is it not accounted in Law the testators debt for onely so much is in Law accounted assets to the executor as the proffits of the lease amounted to over and above the rent so as for that rent so behind the executor himselfe stands debtor as hath beene resolved and therefore hee is suable in the debet and detinet whereas for rent behinde in the testators life and all other the debts of his testator hee must bee sued in the detinet onely Hence it must follow as it seemes that an executor sued for debt upon bond or bill cannot except in some speciall cases pleade a payment or recovery of rent growen due since his testators death though of rent behind at the time of his death it bee otherwise And yet heere againe another difference or distinction is to bee taken viz. where the proffits of the lease exceede the rent and where the rent is greater then the yeerely value of the proffits for even there as else where is shewed the executor if hee have assets is tyed to the holding of the lease and payment of the rent and consequently doth so much of that rent as exceedes the yeerely profit stand in equall degree the testators debt with other debts by specialty and yet againe to reconsider this point what if the debts of the testator by specialtie payable presently at his death or before the time that any rent can grow due upon this Lease shall amount to the full value of the testators goods may not then the Executor though hee doe not pay those debts before the rent day for that would make the case cleere waive the terme for if he may then happilie i● he doe not so but shall by payment of any of this rent want goods to pay any part of the debts by specialtie it may lie upon himselfe and his owne goods as happening by his owne default But on the one side it may bee said that hee could not waive it so long as hee had assets because thereby hee stood equallie liable to pay that debt being once due as the other debts by specialty On the other side it may be said that though the debts for rent and upon bond shall bee admitted to bee in nature equall yet the case being put of rent not due at the time of the testators death it was not then a debt nor duty whereas a Bond makes a present debt and duty though not presently payable the day of payment being not yet come so as this latter is discharged by a release of debts or duties and so is not the former So to leave that point unresolved let us next see whether in some case though the rent exceede not the yeerely value of the Land yet even that payable after the death of the testator may not stand in most part if not wholie upon the testators score as his debt as well as if it had beene payable before his death Posito then that the whole or halfe yeeres rent is payable at the annunciation of our Lady and that the testator dieth two or three daies or some like short time before that feast now certainlie should the Law bee unreasonable if it should lay this debt upon the executors shoulders in respect of those few winter daies proffits which he tooke But surely since the taking of the proffits induceth the Law to lay the rent upon the Executor as his owne debt therefore as where the Executor had the proffits for the whole yeere or halfe yeere except some few daies incurred in the testators life time those few daies will bee unregarded according to the rule De minimis non curat lex the whole rent shall lie upon the Executor as his owne debt So on the contrary part where the whole yeere or halfe yeers proffit except some few daies incurred after the testators death the rent becomming payable so instantlie after the testators death must in reason lie wholy upon the testators estate as to me it seemes What if to this I adde that the testators cattell wherewith the ground was stocked doe depasture and devoure the proffits all the time after the testators death till the day of payment of the rents Nay if the rent were payable at Mich. and the An●unc and the testator dieth a few daies after Mich. the rent being of or neere the value of

made executor but never did administer now it must be replyed that he was made executor at such a place without speaking any thing of his administring On the other side if he did administer but were not made executor then only the administring is to be replyed but if it shall be found that the defendant had administration to him commited and so administred by vertue thereof then is the verdict to passe for the defendant for this is no administring as executor and upon a generall deniall thereof this may be given in evidence as the Lo. Dyar reports to have beene resolved But if the plaintife do in his replication maintaine both the points shall this make his plea double Me thinks it should yet I finde it so replyed and no exception taken for the doublenesse Tr. 17. H. 8. Rot. 28. A sole woman being executor maketh a deed of gift of the testators goods in trust but continueth possession of them and marrieth J. S. who also hath possession of the goods and in an action of debt by a creditor fully administred is pleaded now upon evidence the verdict shall passe for the plaintife for this alienation being fraudulent was void as to all creditors and so as to the plaintife the goods continued the testators and so assets in the defend●nts hands as was held in the Kings Bench. If fully administred be pleaded where the defendant hath assets for part but not sufficient for all and so it is found yet shall not judgement be given for the whole but for part presently with a further award that when more shall come to the executors hand the plaintife shall then have further judgement for the rest so as that false plea doth him no prejudice but makes him in as good state the charges of triall excepted as if he had confessed himselfe to have part And I think the plaintife upon that confession of part may pray the like judgement without maintaining that the defendant hath sufficient for the rest for if that be not true why should he be put to the charge of a triall by Jury yea Sir Edw Cooke at the Barre Tr. 36. Eliz. said that where fully administred is pleaded the plaintife is not tied to maintaine the contrary but may presently pray and have judgement to recover it when assets shall futurely come to the defendants hands which was denied by some but truly me thinks the law should be as he said as well as in the former case where for the part which the defendant had not assets to pay it so was done upon verdict so finding But there as I conceive it was not a present judgement but an award that he should have judgement futurely so as after whē assets come to the defendants hands the plaintife must have a Seire faeias against the defendant to shew cause not why he should not have execution but why he should not have judgement as I take it yea where it is found for the defendant that he hath fully administred yet was is held by all the Justices 33 Hen. 6. 23 24. and by ●riso● 34 Hen. 6. 24. that when assets after come to his hands the plaintife shall have a Scire sacias to have satisfaction out of them but there Markham Yelverton and Forteseu were of contrary opinion and so was the whole Court 4 Hen. 6. fo 4 And it stands with great reason that where upon a verdict fully found against the plaintife judgment is given quod nihil capiat per breve there he cannot have any writ to execute the judgement for him but is put to a new action of debt yet where it is found that the defendant hath assets for part of the debt but not sufficient for the whole there it is very congruous that the plaintife have presently judgement for part and after when more commeth then by Scire facias against the defendant obtaine judgement and execution for the rest for here both verdict and judgement were for the plaintife against the defendant whose plea that he had no goods was false and so found by the jury And this difference was strongly avowed by Serjeant Hanham Mich. 33. 34. Eliz. and after approved by Fenner Iust 36. Eliz. none contradicting it yet a book was cited that the plaintife recovering so much as was found in the executors hands should be amersed for the residue which Popham Chiefe Iustice denied to be law Chap. XVI Where judgement shall be against the Executors owne goods though no plea of the defendant nor vastation do so occasion and of the severall manners of judgement in severall cases HOw by wasting called by us commonly a Devastavit an executor may draw down the execution upon his owne goods hath formerly beene handled and discoursed of as also what kinde of pleas doe make the executors owne goods liable to the debt and what not Now let us see where without mis-administring or mis-pleading yet the nature of the action shall lay the whole debt or thing recovered upon the executors owne goods And this we shall finde in some few cases 1. Where an executor is sued for rent behinde after his testators death upon a lease for yeares made to the testator and by him left to his executor Here it shall be adjudged and levied upon his owne goods for that so much of the profits as the rent amounted to shall be accounted as his owne goods and not his testators therefore is he to be sued as well in the debet as the detin●t where in other cases he is not but in the detinet only being sued as executor So if any thing delivered to or detained by his testator come to his hands and he still detaines the same after the demand and be thereupon sued in an action of detinue for this is his owne act nor in this case need he to be named as executor for he shall not answer damages for his testators detaining So if he assume to pay a debt of his testators having assets and be sued upon this Assumpt the which debt is to be recovered in damages and that upon or out of the executors owne goods yet is this action and the assumption which is the ground thereof founded in the executorship and his having assets for if either he had not beene executor or if he had not assets at the time of the promise it had beene nudum pactum and would not have bound him nor given good cause of suit Nay to go further in the case of assumption by the testator and suit against the executor thereupon we finde the judgement in M. Plowdens Commentary given against the executor generally as if he had not beene an executor not fixing it upon the testators goods yet there the very debt it selfe is included in the damages But contrarily was it after in the seventh yeare of the late King viz. judgement given that as well the damages as the costs should be levied