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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	pay_v	say_a	sum_n	3,002	5	8.9846	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A42922	The orphans legacy, or, A testamentary abridgement in three parts ... : wherein the most material points of law, relating to that subject, are succinctly treated, as well according to the common and temporal, as ecclesiastical and civil laws of this realm : illustrated with great variety of select cases in the law of both professions, as well delightful in the theorie, as usefull for the practice of all such as study the one, or are either active or passive in the other / John Godolphin.	Godolphin, John, 1617-1678.	1674 (1674)	Wing G946; ESTC R8268	410,843	382

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

Executors Age of Seventeen years and that Administration committed after that Age of the Executor is meerly void and notwithstanding this averment here the Executor might be above the age of Seventeen years and within the age of Twenty one years It was therefore adjudged Quod Quaerens nihil caperet c. 5. Co. 29. Trespass upon a special Verdict the Case was Jackson Lessee for years by several Leases of divers Lands some of them in the Diocess of York some in another Peculiar in the same Diocess devised all these Leases to his Son and made his Daughter within Age his Executrix the Mother takes Administration durante minori aetate of the Executrix in F. the Peculiar where the Testator died ad Commodum proficuum Executricis the Administratrix granted this Term durante minori aetate of the Executrix to the Plaintiff Whether the Grant were good or not was the principal Question The Court resolved that it was not good For such an Administrator hath but a special property ad proficuum Executoris but not a general property as another Executor or Administrator hath and therefore his sale of Goods unless they be Bona peritura or it be for necessity for the payment of debts which he is chargeable to pay it shall not bind But he may sue and be sued and yet his Authority is but a limited Authority and therefore like as if Letters ad Colligendum bona Defuncti were granted to one there he may sell bona peritura as Fruit or the like 2. It was moved whether the Assent of an Administrator durante minori aetate to the devise of a Term or the Assent of the Executor himself during his minority to such a Devise be good Anderson said That an Executor at the Age of Eighteen years may Assent but whether the Assent by such an Administrator be good or not they doubted 3. It was moved whether Administration should in this case be granted at Two places viz. the one within the Peculiar the other by the Arch-Bishop of York Ordinary of the Diocess or whether he should have the Prerogative in both as he had where Bona Notabilia were in divers Diocesses And it was resolved That there should be two Letters of Administration granted for the Arch-Bishop shall not have any Prerogative here because this Peculiar was first derived out of his Jurisdiction wherefore c. 5. Co. 29. Errour of a Judgement in Debt in C. B. The Errour assigned was because the Plaintiff sues by an Atturney where he was an Infant and ought to sue by Guardian But because the Action was brought by him as Administrator so that he sued in auter droit Infancy is no impediment unto him no more than Out-lawrie and therefore he might well sue by Atturney and it was thereupon adjudged for the Defendant that the first Judgement should be affirmed Note that if an Infant sue and not as Executor he must then sue by his Guardian vid. Case Bartholomew vers Dighton Hill 37 Eliz. B. R. in Cro. Rep. part 1. Pl. 22. Debt upon an Obligation made to the Testator The Defendant Pleaded a Release made by one of the Plaintiffs The Plaintiff replyes That this Release was made without any consideration and he who Released was within Age at the time of the Release made and it was thereupon demurred and adjudged for the Plaintiff that it was a void Release being by an Infant without consideration In the Case between A. and M. as Administratrix of J. during the minority of L. It was among other things Objected That the Plaintiffs Declaration was not good because it is brought against her as Administratrix durante minori aetate of L. And it is not averr'd that the said L. was yet within the age of Seventeen years sed non allocatur for true it is that if one brings an Action and entitles himself as Administrator durante minori aetate of one such he ought to shew that he is yet within the Age of Seventeen years as Co. 5. fol. 59. Pigots Case For that he is to take Conuzance how long his Authority shall continue and he ought to shew it to enable himself to the Action But when he brings the Action against one as Administrator durante minori aetate there such Plea need not be shewn for so long as the other continues his medling he shall be sued and the Plaintiffs need not take Conuzance of the age of the other as c. And here if her Authority were determined it should be shewn on the Defendants part therefore the Judgement was affirmed Note it was resolved by all the Justices of England That the Release of a Debt or a Duty by an Infant Executor after Probate made of the Will is not good because it should be a Devastavit and charge the Infant of his own Goods and also it should be a wrong which an Infant by his Release cannot do and also because it is not pursuant to the Office of an Executor Infant Executor Administration was committed durante minori aetate debt was brought against the Administrator and then the Infant came of full age and the Justices very much doubted whether the Action did abate A Guardian Recovered a debt on an Obligation made to an Infant the Defendant paid the Principal and Costs and prayed that the Guardian might be ordered to acknowledge satisfaction The Court said That a Guardian or an Infant or Executor may not acknowledge satisfaction for more than they receive and for so much they ordered the Guardian to acknowledge satisfaction And made an Order that no Execution should issue for the residue If an Administration be repealed from one and granted to another which was only durante minori aetate and that other bring the first Administrator to account and after give him a Release yet the Infant at his full age may compell the first Administrator to account to him again and the former account to such second Administrator shall not Bar him for such Administrators Release is not good unless for some such cause as for which it ought to be made It was by the Chief Justice of the Queens Bench demanded of the other Justices there Assembled upon hearing of Causes If one make an Infant his Executor that Releases a Debt due to him as Executor without receiving the summ due which receipt if it be good will be a Devastavit by the Infant of the Goods in his hands whether such Release shall bind the Infant or not It was agreed by them all That such Release is void for an Infant by his own Laches and Folly shall not prejudice himself Yet a Feme Covert Executrix may receive money without her Husband which was due to her Testator and give an Acquittance for the same and if she gives an Acquittance for debt which causes a Devastavit the Release shall be good and the Wife and Husband bound thereby the reason is

a Bond or Obligation is bequeathed in the latter a Discharge or Release 4. And when a Creditor bequeaths a Debt it is not alway material to insert any certain Sum of Money in the Legacy of that Debt for suppose the Testator sayes I bequeath the 10 l. which A. B. owes me be it to A. B. himself or any other in that case a right rather than any certain Sum is understood to be given because if A. B. owed the Testator nothing then nothing is bequeathed and so the Legacy Fruitless 5. But now on the other hand when a Debtor bequeaths what he owes and the Legacy be given to the Creditor himself In that case it is very material to see whether any certain Sum be express'd in the Legacy or not for if there be as when a Debtor-Testator saith I bequeath to A. B. 10 l. which I owe him In that case not so much a bare right only as a certain Sum of Money seems to be bequeathed him for which reason a Legacy of 10 l. will be good to A. B. albeit the Testator owed him nothing 6. But if there were no certain Sum express'd by the Debtor-Testator as if he had only said I bequeath to A. B. what I owe him It is a Fruitless Legacy if he owed him nothing In like manner if a Testator saith I give my Wife what I had with her in Marriage or her Marriage Portion if he had nothing with her in Marriage the Legacy signifies nothing yet if he had said I give my Wife 100 l. which I had with her in Marriage or for her Marriage-Portion though in truth he had nothing with her the Legacy shall be good and is worth her 100 l. Or having had 100 l. with her shall in his Will say I give my Wife 200 l. which I had with her in Marriage the Legacy is good for 200 l. yea though he should therein refer himself to the Articles of Marriage and add as is contained in certain Covenants of Marriage made between us The Reason is because the Law more considers the thing it self when in terminis express'd in a Legacy than any false demonstration thereof Unless it can be sufficiently proved That the Testator meant otherwise than he spake or that he err'd in supposing that to be true which was not so In which case the Legacy avails nothing albeit a certain Sum were in terminis express'd by him 7. For which Reason the Legacy is not good in such case unless he certainly knew he owed nothing to the Legatary otherwise it is if he supposed he did when indeed he did not And the Reason why a Legacy given by a Creditor is nothing worth though the Sum be express'd if nothing be due to him And quite otherwise in the like case if the Legacy be given by a Debtor the Reason I say of this Difference is because the Creditor is understood to bequeath only a Debt Bond or Obligation but the Debtor doth bequeath a certain Sum by Name or the very thing it self expresly 8. A Testator in his last Will and Testament inter alia saith whereas I have in my custody a certain Instrument of Writing wherein A. B. stands bound in the Sum of 400 l. for the payment of 200 l. to C. D. I will that my Executor shall restore the said Bond to C. D. or pay him 200 l. After the Testators death the Bond cannot be found among any of his Writings nor any knowledge thereof possibly had In this case Judgment was given against the Executor and he condemn'd in 200 l. to C. D. as a good Legacy to him by the said Testator 9. When a Debt is bequeathed whereon nothing is due the Bequest is Fruitless if the Testator believed it to be a good Debt albeit the Sum or quantity thereof were express'd in the same But if the Testator when he bequeathed such Debt knew there was nothing due upon it the Legacy is good And although he who bequeaths a Bond bequeaths the Debt contain'd therein yet he that bequeaths to his Debtor the Silver Cup or the like which he had of his in pawn for 5 l. doth not thereby bequeath him that Debt of 5 l. The Reason is because there is nothing but the Pawn or Pledge released the duty and personal obligation still remains Note that he who bequeaths his Debts is understood to bequeath his Credits that is the Moneys or what else is owing to him for Debts as was before observed are taken both Actively and Passively but in this sense of a Creditors bequeathing them they are only taken Actively 10. If a Testator bequeath to A. B. whatever C. D. owe him and C. D. at the same time wrongfully detain'd the possession of certain Lands from the Testator these Lands shall pass by the Devise to A. B. as well as the Money which C. D. owed the Testator as hath been adjudged not at the Common but Civil Law for it is more than presumed that at the Common Law such words though in a Will not Nuncupative but Written are no capable of being by any legal Intellect strain'd to a Latitude of that extent or whether he that bequeaths his Books of Accompt or his Shop Books shall thereby be understood to bequeath the Debts contained therein as also the Moneys in the said Books Calendaried by way of Accompt and design'd for Trade as is likewise evident by the Civil Law 11. Although the Bequest of a Debt is a good Legacy so long as it is a Debt and the Bequest unrevoked yet the Payment of a Debt to the Testator in his life-time extinguisheth the Legacy thereof formerly Bequeathed by him Not so in case it were paid to his Executor soon after his Decease And this holds true albeit the Debt consisted in some certain specifical thing if it perish'd in the Testators time otherwise the Legacy is good Likewise the Testators giving an Acquittance to the Debtor doth extinguish a bequeathed Debt The Reason hereof is because by all these wayes the very substance it self of the Debt which was the thing bequeathed is destroyed yet here Note withall That if a Testator doth demand a Debt which he had bequeathed not with any mind of abating the Bequest but fearing the failure or future Insolvency of the Debtor and shall after keep this Money by it self with some signification therewith what Money it was in such case the Legacy is good notwithstanding such payment precedent which holds yet more strong in case the Testator demands it not but the Debtor himself comes and offers it and with such earnestness as the Creditor-Testator cannot well refuse it And if afterwards the Testator makes a Purchase with part or all of this money which he so demanded not with any mind of abating the Legacy as aforesaid the Bequest remains still good to the Legatary So that if I bequeath