also as Incapable of being Legataries But a person outlawed though depending the Outlawry against him he cannot Sue for his Legacy Yet he is not so properly said to be altogether Incapable of being a Legatary as of being Incapable of Suing for his Legacy unless the Outlawry be Reversed by some Error or discontinuance in the Suit or unless the party Outlawed were beyond the Seas at the time of the Outlawry being pronounced Or unless there were some defect on omission of the Three Proclamations in such Cases by the Stat. required Or unless his pardon be obtained wherein the words of the Pardon ought diligently to be considered For by force of the Outlawry the Legacy is forfeited and confiscate Likewise a person Excommunitate is not so Incapable of being a Legatary as unadmissable by the Ordinary to Commence any Suit for his Legacy during his persistency under such Sentence of Excommunication 3. If one Devise to an Infant in his Mothers Womb it is a good Devise otherwise it is by Feofment Grant or Gift For in those Cases there ought to be one of ability to take presently or otherwise it is void And if one Devise his Land to his Daughter and Heir Apparent in Fee-simple and the Wife of the Devisor be privily with child of a Son which is born after his death Then is the Devise become good for that now she is not Heir to her Father Also a Feme Covert may be a Competent Devisee or Legatary to her own Husband as to such Lands Goods or Chattels which he shall devise to her 4. Whereas Bastards whether Bastards in simple Fornication in Adultery or in Incest are without distinction incapable by the Civil Law of being Legataries yet understand this only where they are made Executors or Legataries to their own natural Parents for to any othets they may be Executors or Legataries Also by the Ecclesiastical Laws they are capable of being Legataries even to their Adulterous or Incestuous Parents so far as is needfull or necessary for their convenient sustentation or for their competent alimentation and relief Therefore have the Laws and Statutes of this Realm provided for the same purpose which do also permit every Man as well by Deed executed in his life time as by his last Will and Testament to be executed after his death to give or devise to any of their Bastards without distinction all their Lands Tenements Hereditaments without restraint And by the civil Law the lawful Children of Bastards may be Legataries to the Adulterous Grandfather but not to the Incestuous Grandfather If a man possessed of Goods devises the same to his Son when he shall attain to the Age of 21. Years and in case the Son dye before that Age then one of his Daughters to have the said Goods and the Son die before the said Age. The Question is Whether the Daughter shall have the Goods immediately upon and after the Sons death or whether she shall stay till the time that the Son should have been of that Age in case he had so long lived The opinion of all the Justices was That she shall have the goods immediately upon the Sons death A Man had Issue a Bastard and after Intermarries with the same Woman by whom he had that Bastard and hath Issue Two Sons by her and then Devised all his Goods to his Children It is by every one supposed That the Bastard shall have nothing for that he is Nullius Filius In that case it is clear that a Bastard shall not take by a Grant But Q. as to a Devise And if the Mother of the Bastard make such a Devise It is clear That the Bastard shall take thereby because he is certainly known to be the Child of his Mother CHAP. III. Of Words and Expressions sufficient for Legacies 1. Any Words whereby the Testators mind or meaning is express'd or implyed are sufficient for Legacies 2. Legacies are not destroyed by Words impertinently used by the Testator in the Bequest 3. That words carrying a false demonstration shall not vitiate and null the Legacy Also how this is to be understood 4. Whether a Legacy may be Bequeathed only by the Testators Signs Becks or Nodds when he can speak articulately 5. Whether a Legacy shall pass by Words only Implicatory of a contrary Condition 6. In point of Legacies the Testators meaning express'd by Words is more to be heeded then when implyed by Deeds 7. The Testators Words by Implication may be such as may make the Legacy greater Casually then he plainly express'd Originally 1. IF a Man in his last Will and Testament says I do give bequeath devise order or appoint to be paid given or delivered or my will pleasure or desire is That he shall have or receive or keep or retain or I Dispose or Assign or Leave such a thing to such a one or let such a person have such a thing or any other Words whereby the Testators Mind or Meaning of Bequeathing is expressed or sufficiently implyed shall be significant enough whereby the Legacy shall pass provided no other Legal Obstacle stand in the way because it is not in last Wills and Testaments as in Deeds for in Deeds the Words do fall under a stricter examinination then the intention or the mind but in Wills and Testaments the Testators Mind and Meaning is more valuable and of more efficacy in Construction then his Words so long as the Interpretation of his Mind and Meaning hold a Conformity with his words nor is oppugned by any other part of his last Will and Testament 2. A Testator in making a Bequest may possibly speak such words as may be very impertinent yea and in themselves altogether untrue and yet the Legacy not destroyed As thus viz. If I give and Bequeath my Field Long-acre to A. B. beyond above besides more then or over and above the Black Horse which I had of him in Consideration of the Ten pounds which he owed me This Long-acre is a good Devise or Legacy to A. B. albeit the Testator never had any such Black Horse of him and althongh he never owed him any such Ten pounds The Reason is because the said words above beyond c. in this sense and in this case are Inclusive and are so to be understood and interpreted So that 3. A false Demonstration shall not vitiate a Legacy Insomuch that if the Testator who hath Bequeathed nothing to A. B. do say That out of the Hundred pounds which I have Bequeathed to A. B. I de give Fifty to C. D. If in this case it be questioned whether any thing be due to A. B. And what is due to C. D. The Answer is That Fifty Pounds are due to G. D. although nothing be here Beqeathed to A. B. because a Legacy shall not be vitiated or nulled meerly by a false Demonstration But to A. B. nothing
remembred them But for the foresaid Reasons it was adjudged for the Plaintiff That those Lands well passed by the Will Suppose a Man hath Two Sons both named John and conceiving his Eldest Son to be dead he Deviseth his Land by his Will to his Son John generally when in Truth the Eldest Son is living In this Case the Younger Son may alleadge and give in Evidence the Devise to him and may produce Witnesses to prove the Intent of his Father And if no Proof can be made the Devise shall be void for the uncertainty of it Glanvile Serjeant prayed the Opinion of the Court in this Case A Man had Issue a Son and a Daughter and Devised his Lands to his Son in Tail and if he dyed without Issue That it should remain to the next of his Name and dyed The Son dyed without Issue the Daughter being then Married whether she should have the Land was the Question And held per Curiam That she should not For she had lost her Name by her Marriage but it should go to the next Heir-male of the Name But if she had not been Married at the Time of her Brothers death the Daughter should have had it for she was the next of the Name One Devised certain Lands in N. in Tail the Remainder to the next of the Kin of his Name and at the Time of the Devise the next of his Kin was his Brothers Daughter who was then Married to I. S. the Devisor dyed The Tenant in Tail dyed afterwards without Issue Whether the Daughter should have the Land was the Question upon a special Verdict and adjudged without Argument that she should not For she is not now of the Name of the Devisor but of her Husbands Name But if she had been unmarried at the Time of the Devise and death of the Donor although she had been Married at the Time of the death of the Tenant in Tail without Issue yet she should have had the Land Wherefore it was adjudged accordingly Ejectione Firmae For certain Lands in A. upon Evidence to a Jury a Devise was shewn of an House with the Appurtenances and thereby Land in the Field was claimed And Popham doubted whether it should pass But Fenner said That it well might pass And that upon Demurrer in 28. Eliz. it was adjudged accordingly The Defendant then to make it clear shewed That the House was Copyhold and the Land Freehold And the whole Court thereupon conceived That it could not be said Appurtenant although it had been used with it Wherefore the Plaintiff was Nonsuited In the Case between H. and H. all agreed the Case of 13. H. 7. That a Testators Devise to his Heir of his Land after the death of his Feme is a good Devise by Implication to the Feme of that Land during her life for it appears he intended his Heir should not have it until the death of his Feme And none other can have it besides the Feme And therefore it is a good Devise to the Feme by Implication But if such a Devise had been to a Stranger after the death of his Feme it might peradventure have been otherwise for the Heir in the Interim might have had it Note That the Opinion of all the Justices was That if one make his Testament wherein are these words viz. I Release all my Lands c. to A. and to his Heirs It is a good Devise of the said Lands to A. and his Heirs Upon a special Verdict the Case was this A Woman Seised of Lands made her Will and devised the same to one and his Heirs after they Intermarry After Marriage the Woman intending to revoke her Will doth revoke it by words after Marriage and saith That her Husband shall not have the Land by her Will and after dyes Whether the Husband by that Will or the next Heir to his Wife shall have the Land was the Question The Case was Argued Pro Con several Arguments on both sides In fine it was Adjudged That the Will was void and that the Husband could take nothing thereby A Man Devised his Lands to his Wife from Year to Year until his Son I. come to the Age of 20. Years and dies the Wife enters I. dies before he attain the Age of 20. Years And it was moved by Harper whether her Interest were thereby determined And it was held by all the Justices That by the death of the Son the Estate of the Wife was determined and that she had no longer any Estate therein For it is to be intended that the Will of the Devisor was That his Wife should have the Land during the Minority of his Son for that he himself could not Legally dispose of the Land being within Age. And Dyer said That by these words de anno in annum It is intended that the Will of the Devisor was That the Interest of the Wife should determine by the death of his Son But if the Words had been until his Son should Come or might Come to that Age of 20. Years then notwithstanding his death the Estate of the Wife had continued A. Seised of the Mannor of Chessam extending into Chessam and the Town of Hertford and also of Lands in Hertford Devised by Will the Mannor of Chessam to B. his Eldest Son in Tail and the Lands in Hertford to C. his Younger Son It was held by all the Justices That the Younger Son should have all that part of the Mannor of Chessam which lay in the Town of Hertford A. Devised that his Lands should descend to his Son but Willed That his Wife should take the Profits thereof until the full Age of the Son for his Education and bringing up and dyed The Wife Married another Husband and dyed before the full Age of the Son It was the Opinion of the Justices in this Case That the second Husband should not have the Profits of those Lands till the full Age of the Son For nothing is Devised to the Wife but a Confidence and she is a Guardian or Bailiff for to help the Infant which by her death is determined and the same Confidence cannot be transferred to the Husband A Man Seised of a Messuage to which a Garden and a Curtilage did belong Enclosed with a Wall and there was no way to the Garden but through the Messuage He Devised the Messuage to his second Son in Fee not mentioning the Garden nor Curtelage nor saith cum pertinentijs It was Adjudged in this Case That the Garden and Curtelage did pass by this Devise They said a Curtelage is parcel of the House as a Stable and a Dovehouse and the Garden shall pass because it is as well for Necessity to it as for Pleasure A. Seised of Lands had Two Daughters and Devised the Lands to the Eldest and her Heirs that she pay to her Younger Sister yearly 30 l. It was the Opinion of all the
Rent belongs to the Heir where it is reserved by a Lay-person and he dies after Michaelmas and before the moneth ended Wherefore it was adjudged accordingly vid. 10. Co. 129. Action brought by an Administrator for Rent reserved upon a Lease for years by the Intestate and for Rent arrear in his time the Action was brought and he shews how Administration was committed by the Arch-Bishop but doth not say Quod profert hic in curia Literas Administrationis The Defendant pleaded and found for the Plaintiff And it was moved in Arrest of Judgement That the not shewing the Letters of Administration was matter of Substance which made the Declaration vicious and not aided by the Statute of 18 Eliz. or 32 H. 8. by the Verdicts for that enables the Plaintiff to his Action and the omission thereof takes from the Defendant the advantage which he might have by demanding Oyer thereof and c. The Court resolved That it was a matter of Substance which ought to be shewn by the Plaintiff to enable him to his Action And the Defendant shall have advantage thereof at any time wherefore it was adjudged for the Defendant Vid. 28 H. 6. 31. 16 Ed. 4. 8. 21 H. 6. 23. Plowd 52. Errour in a Judgment in C. B. The Errour Assigned for that in Assumpsit brought as Executor although he shews himself to be Executor to him to whom the Promise was made yet he saith not Testamentum hic in Curia prolatum The Defendant pleaded non Assumpsit and found against him and Judgement accordingly And this being assigned for Errour was held to be matter of Substance and not of form only and was therefore Reversed An Executor brings Debt upon an Obligation The Defendant pleads non est Factum and found for him And now the Question was whether the Plaintiff should pay Costs upon the New Statute of 4 Jac. which exacts That in every Action where the Verdict passeth for the Defendant the Plaintiff should pay Costs but it was resolved That this Case is not within the intent of the Statute he being in anothers right and of matter which lay not in his cognizance therefore the Law never intended to give Costs against him And so it is upon the Statute of 8 Eliz. where Costs be given in case the Plaintiff is Non-suted As it was ruled in one Fords Case and so it was Ruled here And although Manne said Costs had been allowed in the like Cases they appointed that henceforth it should no more be so It was held That an Administrator shall have Trespass de bonis asportatis in vita Intestati by the equity of the Statute of 4 Ed. 3. And an Executors Executor by the Stat. of 25 E. 3. On a Scire Facias the Case was this Goth was in debt to one Couper who died Intestate his Wife took Administration and brought Debt and had Judgement to recover and died Intestate Yate the Plaintiff took Administration of the Goods of Couper non Administrat and brought Scire Facias to have Execution on the Judgement But it was adjudged that it doth not lie for want of Privity but it is clear that he may have a new Action of Debt And by Popham and Yelverton if an Administrator recover Dammages on Trespass de bonis asportatis in vita Testatoris and then dye Intestate his Administrator shall have Execution thereon otherwise of a Debt recovered which was due to the Intestate Tenant in Dower makes a Lease for years reserving Rent and takes a Husband the Rent is in arrear the Husband dies and it was agreed by the whole Court That his Executors shall have the Rent If A. make a Promise to B. and after B. die Intestate and Administration of his Goods be committed to C. who after dies also Intestate and after Administration is committed to D. of the Goods of C. In this Case D. cannot have an Action on the Promise made to B. as Administrator to G. For he is not Administrator to B. in that Administration was not granted to him of the Goods of B. unadministred by C. CHAP. XXIII Of Actions maintainable against Executors or Administrators 1. Executors lyable to be sued by Creditors though their Testators Goods not actually possessed by them or imbeziled from them 2. What kind of Servants wages Executors are lyable to pay and discharge 3. How Executors are lyable in Case of breach of Covenant by their Testator in his life-time 4. In what Case an Executor may be lyable to pay his Testators Debt out of his the Executors own proper money 5. Several other Cases wherein Executors are lyable to be sued 6. Certain Cases wherein Executors are not lyable 7. Several Law-Cases touching Actions against Executors and Administrators 1. ALthough the Executor hath not actually and particularly laid his hands upon any of the Testators Goods yet shall he be said to be in possession of them so as to stand lyable to the Creditors so far as they extend in value though afterwards others do purloyne or imbezil them 2. Executors are lyable for the payment of the wages of the Testators Servants retain'd in Husbandry and the like but not for the wages of Waiters or Serving-men the reason of the difference is because of the Statute compelling the one not the other to serve Yet for them also an Action did lie against the Testator himself because of his Covenant 3. Where a breach of Covenant happens in the Testators life-time the Executor stands chargeable Therefore if one make a Lease of Land by Deed wherein he hath nothing and die before an Action of Covenant be brought against him it will be maintainable against his Executor though no express Covenant Also if a Lessee for years Covenants to repair the Buildings or to pay the Quit-Rents issuing out of the Lands Lett the Executor to whom the Term cometh must as well as his Testator perform that Covenant although he did not Covenant for him and his Executors Likewise if one be Lessee for years or for life without any Indenture or Deed as he may be and his Rent being behind dieth In this Case his Executor shall be lyable to the payment of this Rent though without any specialty But if the Lessee for years sell or grant away his Term or Lease and die his Executor shall not be charged for any Rent due after the death of his Testator though himself in his life-time was still lyable for the Rent to grow due after until the Lessor accept the Assignee for his Tenant So that if a Lease for years be made rendring Rent and the Rent be behind and the Lessee die his Executor shall be charged for this Rent or if the Lessee for years Assign over his Interest and die his Executor shall be charged with the Arrerages before the Assignment but not with any of the Arrerages due after the Assignment Also an Executor is chargeable for Tythes due
C. and his Heirs or to him and the Heirs of his Body This is a good Devise of the Land in Fee-simple or Fee-tail There are also several other ways of Fee-simple by Will For suppose Land be given to a Man Habend sibi Haeredi suo This indeed is not Fee-simple otherwise it is if it be given sibi duobus Haeredibus suis tantum So if Land be given to a Man Habend sibi Haered with warranty of the Land sibi Haeredibus suis This is a good Fee-simple Or if a Man Devise Land to A. B. for his Life and after to the Heirs or to the right Heirs of A. B. By these Devises A. B. hath a Fee-simple in the Land Also if one Devise his Land to his Wife to dispose thereof at her will and pleasure and to give it to one of her Sons by this Devise she hath a Fee-simple but it is qualified for she must Convey it to one of her Children and cannot Convey it to another 2. When in a Will power is given to a Devisee of Land by the Testator to Sell that Land such Devisee hath a Fee-simple in that Land for power to Sell giveth by Implication an Estate in Fee-simple Also if one Devise his Land to A. B. paying 10 l. without other words By this the Devisee hath the Fee-simple of the Land albeit the 10 l. be not the Dundredth partvalue of the Land In like manner If one Devise Land whereof he is Seized in Fee to A. B. paying 10 l. to G. D. By this Devise albeit there be no Estate expressed yet A. B. hath the Fee-simple of the Land in respect of the Payment of the Money This holds True only in case the Intent of the Testator doth not appear to be otherwise 3. If one in his will devise his Land to his Wife in the first place and then saith my Will is That my Son A. shall have it after my Wives death and if my Wife dye before my Son B. that then my Son A. shall pay to B. 10 l. by the Year during the Life of B. and also 100 l. to I. S. In this Case A. shall have the Fee-simple of the Land Also if one Devise his Land in this manner viz. I give White-acre to my Eldest Son and his Heirs for his part Item Black-acre to my youngest Son for his part by this Devise the the Youngest Son shall have the Fee-simple of Black-acre Or thus I give White-acre to A. B. Item Black-acre to A. B. and his Heirs by this Devise A. B. shall have the Fee-simple as well of White-acre as of Black-acre 4. If a Man Devise his Land in this manner Item I give to A. B. and C. D. and their Hoirs my Land in Kent equally or my Land in Kent equally to be divided by these words A. B. and C. D. shall have and hold the Land not as Joynt-Tenants but as Tenants in Common so that the Heir and not the Survivor shall have his part that first dyeth And yet in case of such a Limitation by Deed it is otherwise But if one Devise his Land to A. B. and C. D. and their Heirs without more words it seems that by this Devise they shall take and hold as Joynt-Tenants Yet if one Devise Land to A. B. and C. D. and the Heirs of either of their Bodies lawfully begotten it seems that by this Devise A. B. and C. D. shall take and hold as Tenants in Common and not as Joynt-Tenants Likewise the Case is the same if one Devise his Land to A. B. and C. D. in this manner viz. I Will that A. B. and C. D. shall have my Lands in Kent and occupy them indifferently to them and their Heirs But if one who hath Two Daughters only give or Devise his Land to them in Fee by this Devise they shall take as Joynt-Tenants and not be in by Descent as Partners for the Testators Will shall take place 5. If Land be given to the Mayor and Commonalty of London or any other Corporation to have and to hold for Term of their Lives it is a Fee-simple Or if a Man say I give to A. B. my House with all the Lands for 21. Years and that A. B. shall have all my Inheritance provided it be not contrary to Law In this Case A. B. shall have the Fee Or if he give it to his right Heirs Males and Issue of his Issue of his Name this also is a Fee-simple And although it be affirmed by some That if the Testator Devise his Land to A. B. and his Assigns without saying For ever A. B. shall have an Estate only for Life Yet the contrary is Asserted by others and that it is a Fee-simple 6. If a Testator saith I will my Land to my Son A. during his Life and after his decease to my Son B. And in case my Son A. shall hereafter Purchase Lands of as good Value as that Land for my Son B. that then my Son A. shall Sell the Land Devised to my Son B. as his own and shall pay 20 l. to C. D. In this Case A. hath a Fee-simple implyed by the Power which A. hath to Sell beside the Payment of Money Also if one Devise Land to me and my Heirs and in Case the Heir at Law put me out that then I shall have other Land instead thereof in this Case and by this Devise I have the Fee-simple of the first Land notwithstanding the latter words Likewise if a Testator Devise Land to me for my life the Remainder to his own Son and the Heirs Males of his Body and in default of such Issue the Remainder to the next Heir-male of the Testator and the Heirs-males of his Body In this Case the next Heir-male of the Son hath an Estate in Fee-simple 7. Suppose a Man Seised of Lands make his Will in this manner viz. Imp. I Devise to my Wife Black-acre for her life the Remainder to my Son T. in Tail Item I Will to my Son T. all my Lands in D. also all my Lands in S. also my Lands in V. Also I give to the said T. my Son all my Island or Land enclosed with Water which I Purchased of I. S. To have and to hold all the said last before Devised Premises to the said T. my Son and the Heir of his Body In this Case the Habendum shall extend to all the Lands in D. S. and V. and shall not limit the Devise only to the Island because the thing last Devised by the Will was an Island in the Singular Number which cannot Answer to the Habendum in the Plural which if extensive to the Island only T. then should have but for Life in the Lands of D. S. and V. But it was otherwise Resolved viz. That the Habendum should extend to all the Lands in D. S. and V.
or Years and therefore the whole shall pass to the Devisee A Man possessed of a Term of Years Devised the same in these words viz. The residue of my Goods Moveable and Immoveable I give to my Son John whom I make my Executor and to him I give my whole Years that I have in my Farm of M. and if he die I give it to my Daughters John the Executor and Devisee proveth the Will claiming the Lease according to the Will and dyeth Intestate His Administrator for good Consideration Selleth the Lease that remains Whence the doubt or Question was whether the Daughters or the Assignee should have the Lease The Case was referr'd to the Two Chief Justices and Justice Walmesley who all agreed That the Assignee should enjoy the Lease and not the Daughters Q. Whether a Devise to them in such manner be void One made a Lease for life after Leased the same to A. for 99. Years if he so long lived to Commence after the decease of the Lessee for life And if A. dyed during the said Term of 99. Years or the Lease otherwise determined and after the death of the Lessee for life then the Lessor granted for him and his Heirs that the Land should remain to the Executors of A. for 20. Years Lessee for life dyes A. Leased for 20. Years Rendring Rent and dyes Intestate B. takes his Administration and brings Action of Debt for the Rent It was Adjudged That it doth not lye for it seem'd to Gaudy and Yelverton That the Contingent of 20. Years was never Vested in A. But if A. had made Executors he might take by way of Purchase Executors being in name of Purchase As in Cranmers Case 14. Eliz. Dyer But if it had been limited to the Executors for Payment of the Debts of A. or the like then by the intent apparent there would be an Interest in A. and in the Executor for the use of A. as Popham and Fenner agreed in point of Law as to an Action of Debt A Man made his Will in this manner viz. I have made a Lease for 21. Years to I. S. paying but 20 s. Rent And it was held That it was a good Lease by the Will For that Word I have shall be taken in the Present Tense as is the word Dedi in a Deed of Feofment A Man Seised of a Mannor part in Demesnes and part in Lease upon Rent Suit and Service Devised by his Testament to his Wife during her life all his Lands in Demesnes and also by the same Testament did Devise to her all his Services and high Rents for 15. Years and further by the same Testament did Devise all his Mannor to another after the death of his Wife And it was Agreed by all the Justices That the last Devise took not effect for any part of the Mannor till after the death of the Wife and that the Heir after the Expiration of the 15. Years and during the Wives life shall have the Services and Chief Rents If a Man possessed of a Lease for Years of Land Devise the same to one for Life the Remainder to another although the first Devisee hath the whole Estate or Term in him and no Remainder can depend thereon at Common Law yet it is a good Devise to the second Devisee by way of an Executory Devise If certain Lands be Devised to one he cannot take them without the delivery of the Executor Or if a Man be possess'd of a Lease for Years of Land and Devise the same to another the Devisee cannot have it or enter upon it without the Executors or Administrators Consent CHAP XIII Law-Cases touching Devises of Reversions or Remainders 1. What Devise of a Reversion is good and what Remainder may be Devised 2. As the Limitation so the Devise of a Remainder after a Fee is void 3. In what Case the Devise of a Remainder of a Chattel-real may be void 4. The Devise of a void Limitation is a void Devise 5. A Devise in Remainder of Goods is void 6. In what Case the Devise of a Remainder over in Fee after Lease for Life made by Executors is void 7. The Difference between a Remainder Entail'd by Devise and Entail'd by Deed. 8. A Remainder Devised to a Church accrews to the Parson of that Church 9. A Refusal in one to take by a Devise shall not prejudice another in Reversion or Remainder 10. How the Devisors Daughters Issue without naming her shall have the Devised Remainder before the Issue of his Sons 11. A Termer of a 100. Years to come Deviseth it to one for Life the Remainder over it is a void Remainder 12. A Devise of a Remainder in Fee after a Lease which Devise is made by him in Remainder is a void Devise if the Lessor Re-enter 13. Several Cases wherein he in Remainder may Devise his Remainder 14. Fee-simple Devised to one the Remainder cannot be Devised to another albeit the first Devise were but Conditional 15. A Term of Years by way of Remainder is Devisable but a Devise by way of Entail with Remainder over is void 16. Lessor may Devise the Reversion of Land for Life notwithstanding a Feofment in Fee 17. Remainder of a Rent-charge in Fee may be Devised to one where the Land out of which the Rent doth arise is Devised to another 18. A Devise may be good for the Reversion of a Term where not for the Rent 19. The Devise of a Remainder may be good where yet an Estate Tail shall precede 20. He in Remainder shall take presently where the Devisee for Life is incapable of taking by Devise 21. Though a Man cannot Devise to himself yet he may Devise a Remainder to his own right Heirs 22. A Man may Devise a Reversion by the Name of all his Inheritance or Hereditaments 23. Devises of Remainders to the next of Blood 24. Where the Devise of a Remainder after the Remainder makes the former Remainder but an Estate for Life 1. IF a Man Devise his Land to B. C. for life the Remainder to the next of Kin or next of Blood of B. C. this is a good Devise of a Remainder Or if a Lessor Disseiseth his Lessee for life and makes a Lease for life to another for Term of life of the first Lessee the Remainder over in Fee though the first Lessee enters yet he in the Remainder may Devise his Remainder 2. If one Devise his Lands to A. so as he render 20 s. per annum to B. and if he fail thereof then his Estate to cease and to remain to B. this Devise is good but the Limitation of the Remainder is void because a Remainder cannot be limited after a Fee Therefore if a Man makes a Lease for Years upon Condition that if the Lessor disturb the Lessee within the Term that the Lessee shall have the Fee and maketh Livery accordingly and after the Lessor doth disturb the Lessee for
them by occasion of some goods in common between them as is usual in cases of such Community And thence seems by such words added to the Bequest to prevent such probable Differences not intending to include within that Legacy such Goods as were not like to cause any Difference between them 4. The first Declaration of the Testators mind Derogatory to the second prevails against that second unless thereby the first be specially revoked And therefore if a Testator in the beginning of his Testament saith That to whom I shall bequeath twice I would have it due but once and then gives a Horse to A. B. After in another part of his Testament gives his Books to A. B. And after that towards the end of his Testament saith it repenteth me that I declared my self in that manner in the former part of my Testament for I incline that A. B. should have my said Books and the Horse In this case the Legatary shall have them both notwithstanding what the Testator said in the former part of his Testament for a Testator cannot in his Will impose such a Law on himself as from which by his Will he cannot recede because only that which is indeed his Will is his Law and a Law unto it self and that alone shall stand 5. If a man doth Devise to A. B. all that he doth possess in London by such general words shall pass all that he hath in the Suburbs as well as in the City But his Books of Accompt or Cash in his Chests which he hath either in the City or Suburbs do not pass by such general words in a Will 6. If I bequeath 100 Books the Legatary shall have 100 Volumes of Books not computing the several Books that may be in one Volume as so many of the 100. And if I bequeath him my Study or Library she shall have only the Books not the place where they are nor other things that may be there 7. If a man Devise his House to A. B. with all the things therein when he shall dye such things as are there only by chance and did not use or were wont to be there do not pass by that Devise yet such things shall pass as only by some accident were not found there but used to be there But Money found there which not long before was received from Debtors and intended to be again Lent out doth not pass by such Devise 8. If I bequeath Materials fit to make a Ship and after do build a Ship therewith the Ship doth not pass by that Devise Or if I bequeath a Ship and after do rip abroad that Ship the Legatary shall not have the Materials thereof yea though another Ship be afterwards built of the same Materials he shall not have it Yet if I bequeath a Wedge of Silver wherewith any Vessel is after made the Legatary shall have it so as the form or fashioning thereof be not of more value or cost more than the Silver it self is worth 9. A Testator had six Marble Statues and a great quantity of other Marble he Deviseth two of his Marble Statues and all his other Marble to A. B. whether by this Devise may the Legatary claim the Six Marble Statues It is answered Negatively he can have but two Marble Statues because when the Testator gave him the Statues so specially and Numerically both he seemed not to intend the Legatary should have the other four by that Devise If so he would not have specified in two had he intended six but rather in all probability would have mention'd six in stead of two but if the number or the Names of the Statues bequeathed be not specified in the Legacy they will all seem to pass under the Genus of Marble ex abundanti 10. A man having two Horses doth in his Will say I give to A. B. the two Horses which I shall have when I dye after the Testator sells his two Horses and at his death is found to have only two Mares In this case the Legatary shall have the two Mares because in construction of Law the Feminine in such cases is compris'd in the Masculine 11. If a man indebted 20 l. hath Goods worth 100 l. and gives to his Wife the one half of all his Goods to be equally divided between her and his Executors In this case the Wife shall have the one half of all the Estate personal and that without any defalcation 12. Under the notion of Housholdstuff is not to be understood in any Will or Bequest any Apparel Books Weapons Tooles for Artificers Cattel Victuals Corn in the Barn or Granary Waynes Carts Plowgear or Vessels fixed to the Freehold As for Plate it is the common and fairest Exposition to understand only so much thereof within the Notion of Housholdstuff as the Testator himself in his life time did so understand and as much thereof as himself did esteem rather as Utensils than Ornaments and accordingly made use thereof rather for the daily and ordinary service of his House then for Ornament Pomp or delicacy And as touching Coaches whether they are within the Notion of Housholdstuff or not I suppose the Reader will not easily be perswaded to joyn with those in their opinion who hold it in the Affirmitive unless he will also allow the Plow and the Cart which are of more Domestick use and service than Coaches to have the same Priviledge with the other 13. A Testator may Bequeath the Corn growing on his ground at the Time of his death yet if he be a Lessee for Years and sowe the Land so short a Time before the Expiration of his Lease that the Corn cannot possibly be ripe when the Term Expires and he die before such Expiration of his Term In this Case his Bequest of such Corn is void because himself if he had lived could not have Reaped it after his Term Expires 14. If a Man Bequeath all his Sheep neither the Rams nor the Lambs are comprised therein but if he Bequeath his Flock of Sheep they are both therein comprised Or if he Bequeath 20. Sheep which he hath in his Flock and which indeed is all his Flock the Legatary shall have them all because by this he Bequeatheth his Flock of Sheep Likewise if one Bequeath his Flock or his Heard to me and the Testator living some of the Flock or Heard die and others put into their stead In this Case the Legatary shall have them because it is the same Flock or Heard as formerly But what if one of them die in that Case and notwithstanding such diminution the Legatary shall have the 19. though it be not the Flock which the Testator Bequeathed Likewise if 19. die so that but one only remains the Legatary shall have that one Also if a House be Devised which is after burnt the Legatary shall have the Ground whereon the House stood 15. A. B. Deviseth his
be Administrator and have Administration of Leases as well as of personal things because he hath them as an Executor in anothers right and not to his own use Yea it is also said that a Bastard an Excommunicate or an Out-lawed person may be as able and as absolute an Executor as any other Also Infants may be made Executors but the performance of that Office shall not be committed to them untill they have attained unto the Age of seventeen years To the first forementioned may be added Corporations which although lawful ones yet may not stand Executors unless they can duely Prove the Will and take an Executors Oath Finally note that what hath been here formerly said of Executors may be also applyed to and understood of Administrators CHAP. VII Of an Executors Executor 1. That the Executor of a sole Executor is Executor to the first Testator 2. That an Executors Executor cannot perform a Trust committed by the first Testator 3. An Executors Executor hath nothing to do with the first Testators Goods where there is a surviving joynt-Executor 4. In what Case an Executors Executor shall have to do with the first Testators Goods when the surviving joynt-Executor shall not meddle therewith 1. AN Executors Executor where there is no joynt-Executor is Executor to the first Testator as he is to the second and consequently hath a right to all the profit and is liable to all the charge that the first Executor had or was subject unto yet with this caution and difference that the one Testators Goods shall not stand charged for the other Testators debts but each for his own respectively And if in such case the Executors Executor assume the Administration of the first Testators Goods he cannot afterwards refuse the Administration of the Goods of the later Testator but he may accept the later yet refuse the former but not è contra Also an Executors Executor shall not be admitted to Administer the Goods of the first Testator where the first Executor who was his Testator refused to Administer or died before Probate unless all the residue of the first Testators Goods after the debts paid be given in the Will to the first Executor 2. Where a special trust is by Will recommended to an Executor as to sell Lands c. This being not performed in his life-time shall not be performable by his Executor after his death Contrariwise it is of an interest as to take the profits of Lands for certain years towards payment of Debts and Legacies or for recovery of Rents of Inheritance left unpaid in the Testators life-time 3. If Two Executors be appointed whereof one maketh his Testament wherein he nameth his Executor and dieth his joynt-Executor surviving in this Case the Executor of the Executor is not to be joyned with the said joynt-Executor surviving neither in the Execution of the Will nor in Suits or Actions And if such Executor of the Executor have any Goods which did belong to the first Testator the surviving Executor of the same first Testator may have an Action against such Executors Executor for the same Insomuch that if the surviving Executor doth afterward die intestate yet may not the Executors Executor meddle with the Goods of the former Testator for the power of the Executor who died first was determined by his death the other then surviving And the Judge in this Case may commit the Administration both of the surviving Executor who died afterwards intestate and of the Goods of the former Testator not before Administred And if the Executor of the Executor who died first meddle with the Goods of the first Testator he may be sued by the Creditors of the first Testator as Executor in his own wrong But where there is no joynt-Executor there most things which concern immediate Executors extend also to the mediate or more remote Executors that the mediate Executor in the fourth fifth or further degree stands in like manner Executor to the first Testator as the first and immediate Executor and may sue or be sued as the former 4. Suppose Two Executors whereof One refuses to Prove the Will and Administer the other Proves it Administers and dies Testate In this Case the Executor of that joynt-Executor that so Proved the Will shall be the first Testators Executor and the surviving Executor so formerly refusing shall not now be admitted to intermeddle therewith because his Election determined at his Co-Executors death But it is otherwise where the surviving Executor hath accepted the Executorship for in that Case he shall have the sole disposing of the Estate and the Co-Executors Executor is not to intermeddle therewith but to surrender to the other what Goods belonging to the first Testator happen to be in his Custody Errour the Errour assign'd was That W. E. had brought debt upon an Obligation by the name of W. E. Administr Bonorum Catallorum A. E. durante minori aetate of J. E. Executor of the said A. E. Executor of R. E. and demands a Debt upon an Obligation of Twenty nine pound made to the said R. E. the first Testator whereas he could not bring an Action by this Name but as Administrator of R. E. But it was said that Administration of the Goods of R. E. being committed to him by this name omnium Bonorum c. A. E. it may well be committed to him by this Name especially when A. E. did not die Intestate but made an Executor 10 Ed. 4. 1. That by the grant of the Administration of the Goods of the Executor Administration is by it granted of all the Goods of the first Testator 27 H. 8. 7. Curia Contra clearly For by this Administration committed he hath no Authority to meddle with the Goods of the first Testator and for this cause the Judgement was reversed Debt against the Executor of an Executor The Defendant pleaded that the Executors Testator had fully Administred and that he had nothing in his hands at the time of his death and it was found that he had Assets Whereupon a Fieri facias issued to the Sheriff and he returned that the Defendant had nothing And it was held that the Sheriff should be amerced for he should have stopt making such Return And that it should be no prejudice to the Plaintiff for that the Debt shall be charged so long as the Record remains in force not Reversed by Errour nor Attaint And if he hath no Goods of the Testators he shall be charged of his own proper Goods For that when he pleaded that the first Testator had fully Administred he did not say that Assets did not come to his hands after his Testators death CHAP. VIII Of an Executor in his own wrong 1. Who is an Executor in his own wrong and what Acts make him such 2. How far an Executor in his own wrong is chargeable and how impleadable 3. What Acts shall not make a
as 8 El. 4. 3. And Nichols Justice said That a Personal Action once suspended by the act of the party as here by the act of the Obligee in making the Wife of one of the Obligors his Executrix shall be Extinct for ever otherwise if by the act of Law And it seemed to the Court That by the last clause of the Devise of all his Goods to the Wife after his Debts and Legacies paid the Obligation passed to the Wife And inasmuch as that the duty and debt thereof is a thing in action which by our Law cannot be transferred by a Devise yet it shall enure as a Declaration of the intent of the Obligor that the debt is extinct and the Civil Law allows a Devise of debts due to the Testator to be good And it is averred in the Principal Case That the Debts and Legacies are all paid whereupon Judgement was given Quòd quaerens nihil capiat c. The suggestion was That whereas one was in debt to J. S. in Thirty pound who after by deed of Gift in his life-time conveyed all his Goods and Chattels to A. and after made the Plaintiff and B. his Executors and devised that the Plaintiff should pay out of the Thirty pound which he owed him Ten pound to the Defendant for a Legacy who brought the Plaintiff into the Ecclesiastical Court for the same where by the Law the Thirty pound debt is extinct by making the Plaintiff Executor and shewed that he had Proved the Will c. And per Curiam the Defendant shall have a Consultation forasmuch as the joynt-Executor hath no remedy to recover the Thirty pound against the Plaintiff his Co-Executor nor can have any Action for the same during the Plaintiffs life yet the debt not extinct but remains as Assets to any other Creditor as is 8 E. 4. And by the same reason that one debt shall satisfie another debt it shall satisfie a Legacy also and much the rather in regard the express intent of the Testator was to that purpose having precisely limited the Legacy to be paid out of the debt Quod not a per totam Curiam And Consultation was granted accordingly Yelv. Council for the Plaintiff CHAP. XII The general difference between an Executor and an Administrator and wherein they generally agree THey differ thus viz. An Executor is made either by the Testator or by his own Acts but an Administrator is appointed only by the Judge An Executor may appoint an Executor to the first Testator so cannot an Administrator yet a bare and meer Executor or a naked Executor to whom nothing is bequeathed in the Will made choice of meerly for his care and not at all for his profit cannot bequeath the Testators Goods in his Will by Legacies no more than an Administrator for these Goods are to be imployed only for the behoof of the Testator in which respect such Executor is accountable as well as an Administrator But of the Profits and Fruits which happen and arise of those Goods which belong to any as Executor he may make his Testament though not of the Goods themselves and so also in some cases may an Administrator They agree thus viz. An Administrator is entitled to all the Goods and Chattels of the Intestate as well as an Executor to all the Goods and Chattels that belonged to the Testator they are both alike liable to the payment of Debts and Legacies and they are both accountable These are the most general things wherein they differ and agree Their more particular agreements and disagreements are very many according to their distinct Beings Interests and Offices For which reason the Reader for his fuller satisfaction in this point is referred to his own Observations from the Contents of the several Chapters of this Testamentary Treatise CHAP. XIII Of the Executors Rights exclusively to the Heirs 1. The several divisions and distinctions of such things as come to the Executor and what Chattels are 2. Of such Chattels real living and moveable as accrew to the Executor 3. Of such Chattels real without life and immoveable as go to the Executor 4. Of Chattels personal living and moveable belonging to the Executor 5. Of Chattels personal without life and moveable pertaining to the Executor 6. Several Laws in reference to this subject 1. ALL things that come unto an Executor may be divided into things possessory and actually in the Testator or into things only in action and not actually in him and the things possessory may be divided into Chattels real and immoveable or into Chattels personal and moveable Again the possessory Chattels real may be divided into things living or into things without life Also the personal Chattels or Goods moveable may be divided into things living or things inanimate and without life There are also comprehensive of some of these Chattels principal and Chattels accessory that follow the principal So that Chattels are all possessions of Goods moveable and unmoveable except such as are in the nature of a Free-hold or parcel of it And they are called real or immoveable either because they are such in their own nature or because they appertain to something real by way of dependance as a Box with writings of Land the body of a Ward the fruit of a Tree or the Tree it self upon the Land or because they issue out of things immoveable and of a more real nature as Leases for years at Will Wardships Tenants Estates by Statute Merchant Staple or Elegit and Grants of the next Advowson 2. The Chattels Real Living and Moveable which did accrew to the Executor were such as these viz. Wardship being a real Chattel in respect of a Tenure of Land whereby was intended such Wardship as was by Knights Service and not such as is by Socage Tenure also a Villain for years as by Grant for a Term from him that had the Inheritance 3. The Chattels Real without Life and Immoveable that go to the Executors are generally and for the most part in Houses or Lands by Lease or extent upon Judgements Statutes or Recognizances or in things issuing out of Houses or Lands as Rents Commons and the like as arrerages of Rent behind at the Testators death also Advowsons Tithes Fairs Markets Profits of Leets and the like which the Testator had only for years Also the Title accrewed to the Crown upon Attainder of Felony where the party held not of the King viz. the Annum Diem Vastum that is power not only to take the Profits for a year but also to wast and demolish c. is but a Chattel And therefore though granted to one and his Heirs by the King yet shall go to the Executor not to the Heir Also a Lease for years determinable upon lives which is a Chattel and shall go to the Executor As also doth an Extent upon a Statute Likewise if a Termer for years grant his Term by Bequest or otherwise to A. and his Heirs
if A. dies his Executors not his Heirs shall have it for it is no Inheritance Or if such a Termer grant a Rent out of the Land to A. and his Heirs or the Heirs Male of his body yet shall it go to the Executor not to the Heir for it being derived out of a Chattel it self remains a meer Chattel and becomes not any Inheritance Also if a Rent be granted out of Land to one in Fee-Simple Fee-Taile for Life or Years and it be not paid to him in his life-time the Arrerages shall go to his Executor not to his Heir Or if a man seized of Land and possessed of a stock of Cattel Let it for Years and Covenant with the Lessee that he pay to Him and his Wife their Heirs and Assigns one hundred pound per annum during the Term in this Case after the death of the Lessor his Wife surviving him her Executor and not his Heir shall receive this payment Again if A. grant the next Presentation of the Church of B. unto D. In this Case if D. dies his Executor shall have it as a Chattel Not the Heir Or if A. grant a Lease for years of Land to D. and his Heirs and dies his Executor and not his Heir shall have this Term. And if A. possessed of a Term of years of Land grant it by Deed or give it by Will to D. and his Heirs or to D. and his Heirs Males or devise it by Will to B. for life the remainder to D. and his Heirs in these Cases D. shall have these Terms of years as Chattels and after his death his Executor shall have them Also if a Lessee for life make a Lease for years absolutely This in Law is a Lease for so many years if the life live so long and shall go to the Executor after his death And if one makes a Feoffment in Fee of Land the Feoffee covenanting to do divers things to the Feoffor and to forfeit five pound to him and his Heirs as oft as he shall fail performance and the Feoffee doth fail and break his Covenant divers wayes and the Feoffor dieth in this case his Executor not his Heir shall have and recover all the Forfeitures that are past and unpaid Also if any Goods or Chattels be granted to any Heads of Bodies Politick and their Successors their Executors and not their Successors shall have them In like manner if a Lease for years be made to a Bishop and his Successors and he die his Executor not his Successor is to have it 4. Among the living Chattels Personal that go to the Executor may be comprehended an Apprentice for years the interest of a Debtor in Execution for debt and in a Prisoner taken Jure belli Also Cattel of all kind yea and Fishes in a Pond Conies in a Warren Deer in a Park Pigeons in a Dove-house where the Testator was but a Termer or Lessee thereof for then they are to go to his Executor as Accessory Chattel following the State of their Principal viz. the Pond Warren Park and Dove-house Or if the Conies Pigeons or Deer were all tame they are then likewise to go to the Executor and not to the Heir so likewise are Hawkes reclaimed yea it is felony to steal Hawkes young in the Nest which implyes that they are Goods and belong to the Executor 5. Chattels Personal without life and moveable as all Householdstuff Implements and Utensils Money Plate Jewels Corn Pulse Hay Wood felled Wares Merchandise Ships Carts Plows Coaches c. are evident to belong to the Executor not to the Heir And generally all things sowed and not arising from the Earth without manuring go to the Executorsâ— and such things as grow of themselves to the Heir therefore Corn in the field growing or standing shall go to the Executor Also Hops though not sowen if planted likewise Hemp and Saffron do like Corn growing pertain to the Executor Also after Corn reaped and before the Tythes set out the Inheritor of the Tythes dying his Executor and not his Heir seems to have the best right to the Tythe after set out Also things above ground in Gardens as Mellons of all kind and the like go to the Executor not to the Heir as also all other things as have such a yearly setting or manurance as severs them in interest from the soile Also the Writings and Evidences that concern not the inheritance but only Leases Terms Goods Chattels or Debts pertain to the Executor If one that holdeth Land for the Life of A. B. sow the Land and A. B. happen to die ere it be ripe and cut and he that so holdeth the Land happen to die also before it be ripe the Executor of the Tenant shall have the Corn. And if the Tenant in Tayl sow the Land he doth so hold and die ere it be cut the Executor not he in Reversion nor the Heir nor the Issue in Tayl shall have it Also if A. make a Feoffment of Land to B. excepting the Trees thereon which he afterwards grants to B. for years in this Case the Trees are in the nature of a Chattel and if B. dies his Executor shall enjoy them Or if A. seized in Fee of Lands whereon Trees grow sell these Trees to B. who then dies before they be felled in this Case the Executor or Administrator of B. shall have them and may sell or cut them down Lastly The Executor without contradiction of the Heir may in any convenient time after the Testators death enter into the house descended to the Heir for the removing and taking away of the Goods so as the door be open or at least the key be in the door but he cannot justifie the breaking open of the door of any Chamber to take Goods thence But if the Goods be not removed in convenient time the Heir may distrain them as Dammage Fesante 6. If a Lease for years be made to a Bishop and his Successors and he die his Executor not his Successor is to have it If a Presentment to a Church happen to a Tenant in Tayle and he die before he Presents his Executor not his Issue in Tayle shall Present because the Chattel is not devested Likewise if a Termer have a Presentment which doth happen during the Term though he do not Present yet he shall have it If a Parson Vicar Master of a Hospital or any Body Politick be possessed of any Goods or Chattels in their own Right and die they shall go to their Executors or Administrators not to their Successors If a Lease be made for years or the next Advowson of a Church or Covenant for payment of money or the like be granted or an Obligation made to one and to his Heirs In all these Cases he hath this as a Chattel and it shall go to his
out the Executor unless the money for the Land to be sold be to be distributed in pios usus because in this Case the Frank-tenement after the Testators death is in the Executors not in the Heir for which reason the Heir cannot enter in this Case as he might in the former 3. In an Action of Debt brought against Executors They were at Issue if Assets were in their hands or not and the Jury found by a Special Verdict That the Testator was seized of a House in Fee and made a Lease thereof and of certain Implements of household in it for years rendring Rent to Him his Heirs and Assigns and found that the Executors after the death of the Testator continually received the Rent and prayed Advice of the Court if the same were Assets in the Executors hands And the Opinion of the Court was That it was not Assets for that the whole Rent was to go with the Land in Reversion as magis digne and so did belong to the Heir not the Executors A man Willeth that after twenty years after the death of the Devisor J. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor CHAP. XV. What goes neither to the Heir nor Executor and in what Cases 1. Bona Paraphernalia go neither to the Heir nor to the Exeeutor 2. Things in joynt-Tenancy go neither to the Heir nor to the Executor 3. Things willed by the Testator to be sold for certain uses go to neither of them 4. A Lease simply for Three Lives goes neither to the Heir nor Executor 1. BY the Civil Law those Goods belonging to the Wife called Bona Paraphernalia descend neither to the Heir nor to the Executor neither are they by that Law subject unto the payment of the Husbands debts But now under that notion of Bona Paraphernalia we are not to understand the Wifes Apparel with her Bed Jewels and Ornaments for her person to be comprehended but her convenient Apparel and onely such as is agreeable to her degree and such shall go to the Wife onely the rest unto the Executor And thus much the very word being Etymologized doth imply 2. The Goods and Chattels which one hath in Joynt-Tenancy with another shall not on his death go to his Executor nor to his Heir but to the other surviving Joynt-Tenant and that by right of survivorship Otherwise it is with Tenants in common for if A. and B. have Goods or Chattels in Joynt-Tenancy and if either of them grant what belongs to him unto a Third person in this Case that Third person and he which kept his part unsold are Tenants in Common and therefore if either of them Two die the deceaseds part of such Goods and Chattels shall go to his Executor and not to the surviving Tenant in Common Also if Husband and Wife be Joynt-Tenants of Land and the Husband die the very Corn growing thereon shall survive to her together with the Land and though the Husband sowed it yet shall it not go to his Executor 3. The Monies or Profits arising out of Lands Willed by the Testator to be sold are not accounted as any of the Goods or Chattels of the person deceased and consequently do go neither to the Heir nor to the Executor but to the uses for which it was willed to be sold 4. If one have a Lease simply for Three Lives to him and his Assigns this is no Chattel therefore shall not go to the Executor and it is no Land therefore it shall not go to the Heir but in this Case it shall go to him who first after the Testators death Enters and Claims it as an Occupant if no assignment thereof be made in the life-time of the Lâ—ssee But a Lease for years determinable upon Lives is a Chattel and shall go to the Executor So also doth an Extent upon a Statute CHAP. XVI Of the Indivisibility of the right and interest of Co-Executors Their Indivisibility 1. In point of Power and Authority 2. In point of Interest and Possession 3. In Case of Plaintiffs and Defendants 1. WHere there are more Executors than One or Joynt-Executors to the same Testator One of them cannot give nor release his Interest to the other or if he doth it is void and he who so releaseth shall still have as much Interest as he to whom he released because each had the whole before Therefore if one Executor release but his part of a debt it hath been held that the whole is discharged But if one Executor alone sell Goods of the Testator he alone may maintain an Action of debt for the money So if Goods be taken out of the possession of one Executor he alone may maintain an Action for the same and that without naming himself Executor Also one Executor not joyning in suit with another may any time before judgment release but after Judgement he cannot because then it is altered in nature and turn'd into Rem Judicatam And though many Executors to one and the same Testator make but one Executor yet the devastation wast or misdoing of one shall not charge the rest nor make their Goods lyable for recompence but himself shall answer for it with his own Goods yet no further than the value of the Testators Goods so wasted or misadministred 2. If one of the Executors where there be Two or more grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no Parts or Moities between Executors Thus if an Horse come to four Executors each hath a Horse and yet all four have but one Also though a Lease for One thousand Years of One thousand Acres of Land come to Two Executors or more no partition or division can be made between them because it is not between them as between joynt-Lessees of Land where each hath but a Moitie in Interest though possession of and through the whole but among Executors each hath the whole and therefore if he grants his part he grants the whole yet one Executor may demise or grant the Moitie of the Land for the whole term and so may the other and this way they may settle a Moitie for each in some Third person intrusted for them but one Executor cannot make a Lease to the other of any part because he had the whole before nor can one of them Sue the other as Executor unless the Testator devise to one of his Executors all his Goods after such Debts and Legacies paid and satisfied for in such Case after satisfaction thereof that Executor may take the remainder of the Goods and maintain an Action of Trespass against the other if he take them from him and consequently an Action of Detinue if he keep or detain them but this he may do not as
Executor but as Legatee 3. Where there are divers Executors they are all but as one person and therefore cannot plead several pleas being sued all of them represent the Testators person and they must all joyn in Suits as Plaintiffs and be joyned as Defendants or at least so many of them as have Administred therefore one Executor sued if he plead that there is another Executor not sued must also plead that that other hath Administred Thus Executors though never so many represent the person of the Testator as one person Therefore all of them shall have but one Essoyn neither before appearance nor after because their Testator himself whose person they represent could have no more And therefore where Executors as Defendants have appeared if any one of them will confess the Action this binds and concludes the rest but if one will plead one Plea and the other another some are of Opinion that that shall be received which is best for the Testators Estate So where they Sue such as will not prosecute shall be severed and the rest without them may proceed It is evident by what hath been said That Two Joynt-Executors being Sued cannot plead two distinct Pleas because they both represent but one person viz. the Testator who could have but one only Plea Yet others say they shall have several pleas and the most peremptory shall be tryed And if any one of Joynt-Executors Plaintiffs dies the Writ abates though he so dying was for non-appearance on summons before severed and so it is if one of the Co-Executors Defendants dies Yea if a Creditor Sue A. B. C. as Executors where only A. and B. are Executors even there by the death of C. the Writ abates Also if a man make Three Executors whereof Two refuse the Administration yet they shall be Executors by the Will and may Administer when they please and an Action ought to be in all their Names otherwise the Writ shall abate CHAP. XVII Of the Executors Interest and Possession and how it differs from that which he hath in his own proper Goods 1. What may be said to be in the Executors Actual Possession or not 2. How the Executors Interest in the Testators Goods differs from that which he hath in his own 3. Whether an Executor may by Will bequeath the Goods he hath as Executor 4. Whether the Administrator of an Intestate Executor may intermeddle with the Goods of the first Testator 5. How Testators and Executors are Correlatives as to Chattels 1. IN Chattels Personal the Executor hath such an Actual Possession presently upon the Testators death though never so far distant from him and without any laying his hands actually on them as that he may maintain an Action of Trespass against any taking them away or spoiling them though he or any for him never came near them but Chattels Real as Leases for years are not in his possession till himself or some for him actually enter thereupon But a Lease for years of Tithes be the Executor never so far distant from them at the time of the Testators death shall be in his actual possession instantly upon the setting out thereof so as he may maintain an Action of Trespass against any that shall take the same so set out though he nor any for him did never actually lay their hands thereon But in Glebe Lands into which Entry may be made the Case may be otherwise Nor are Debts accounted to be in the Executors hands till recovered So likewise Arrears of Rents yea of Inheritance behind in the Testators life-time for Executors are qualified to receive them also 2. An Executors Interest as Executor is only in his Testators Right his Interest in his own Goods is absolute and proper therefore though the Lord of a Villain might take all the Villains own Goods yet he might not take the Goods he had as Executor And from hence some have been of Opinion that an Executor granting all his Goods these are excepted which he hath as Executor except the Executor according to the Lord Dyer who is the Grantor be named Executor in the Grant 3. Nor can the Executor by Will bequeath the Goods he hath as Executor without a precedent alteration of the property thereof and with a Reconveyance thereof back to himself again 4. An Executor dying Intestate his Administrator cannot meddle with those Goods the Intestate Executor had as Executor but thereof Administration must be granted As De Bonis non Administratis to the next of Kin of the Intestate Executors Testator For thè reason aforesaid the Goods which a man hath as Executor are not liable for the Executors debts and therefore cannot be taken in Execution for his own proper debts For the same reason also the Goods which a Woman hath as Executrix are not devested out of her into her Husband by marriage nor can he have them after her death without being his Wifes Executor Upon the same ground it is as was but now hinted that the Goods and Chattels of the first Testator in the hands of his Executors Executor no alteration of the property thereof being made by his Executor shall not be liable for satisfaction of the debts of his said Executor As thus suppose A. makes B. his Executor and dies B. makes C. his Executor and dies Now if B. made no alteration of the property of the Goods of A. but meerly left them to C. In this Case the Goods which so came to B. as Executor to A. and so from B. to C. shall not be liable in Law to pay the debts of B. the immediate Executor of A. 5. There is a further discovery of an Executors Interest as to Chattels Real wherein Testators and Executors are as Correlatives for if a man make a Lease for life to one the remainder to his Executors for twenty one years the term of years shall immediately vest in the Lessee for even as Ancestors and Heirs are Correlatives as to Inheritance so are Testators and Executors Correlatives as to Chattels And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessee himself as well as if it had been limited to him and his Executors And thus a Remainder of years limited to the Executors of a Lessee shall presently vest in the person of the Lessee himself because Testators and Executors are Correlatives as to Chattels CHAP. XVIII Of the Executors Right in opposition to the Heirs in reference to Mortgages 1. How the Executor doth more represent the person of the Testator than the Heir doth the person of his Ancestor 2. The difference in point of payment whether to the Heir or to the Executor in Case of Mortgages 1. IF the Feoffee in Mortgage before the day of payment which should be made to him make his Executors and die and his Heir entereth into the Land as he
was a good Execution of the Devise without any Probate made of the Will Mich. 22 Eliz. Dyer 367. Letters of Administration do relate to the time of the death of the Intestate and not to the time of the granting of them and therefore an Administrator may have an Action of Trespass or a Trover and Conversion for Goods taken by one before the Letters granted to him otherwise there would be no Remedy of the wrong done Executors took the Testators Goods before they had Proved the Will another took Letters of Administration and takes the Goods out of the Executors hands before the Will was Proved The Executors bring their Action of Trespass against him who took the Goods the Court held that it did well lie for after the Testators death the Goods belong to the Executors and to none other and an Administration to intermeddle with these Goods is utterly void for that they have nothing to do with those Goods as Administrator when there is an Executor 7. An Executor may retain Goods in satisfaction of a Debt due to him from the Testator and the Retainer shall be held good Action of Debt was brought against the Executors of A. B. who pleaded that they had fully Administred the Plaintiff gave Evidence that they had Goods in their hands the Defendant shewed that the Goods were pledged by their Testator and that they had Redeemed them with their own money to the full value and that for the rest of the Goods that they had paid to the Testator as much for them as they were worth It was holden That the same did well maintain their Issue of Fully Administred for that an Executor shall by way of Retainer be recompenced that which he hath paid But an Executor of his own wrong cannot retain Goods but they shall be Assets in his hands The like we have in another Case Two men were possessed of Goods as Executors the one of them took the goods into his hands and disposed of divers summs of money in pios usus pro anima Testatoris which summs did amount to more than the Goods of the Testator were worth and he did retain the Testators Goods as his own proper goods converting the same to his own use whereof he died possessed after he had made his Will and therein Executors The surviving Executor brought Detinue of the said Goods against the Executor to the value of One hundred pound upon which the Defendant pleaded the matter Supra It was adjudged That the Retainer was Lawfull and that those Goods now in the hands of the Executors were not Assets or Goods of the first Testator in the Executors hands Or suppose a Testator be indebted to a man by Bond in Twenty pound if his Executors make a sufficient Obligation to the Testators Creditor and sufficiently discharge the Testator without fraud or covin they may retain the Goods for so much and the Goods retained shall not be Assets in their hands yea though they have appointed ulteriorem diem for the payment of the money S. Brought Debt against S. as Executor to B. who pleaded fully Administred c. to which the Plaintiff replyed That he had Goods of the Testators to the value of Two hundred Marks which the other confess'd and gave in Evidence that he had paid as much of his own proper money for the Testators Debts and shew'd how the Judges doubted whether he could give the matter in Evidence and desired the Opinion of the Justices of B. R. thereon who held That he might give it in Evidence whereupon the Justices proceeded accordingly For it was agreed Hill 10 H. 8. That the property of the deceaseds Goods by payment of the Testators Debts to the value of the said Goods retained to the amount in value was altered and the property being altered to the use of the deceased is a just Administration CHAP. XXI Of Inventories 1. Within what time an Inventory is to be made and exhibited 2. The manner how and reason why an Inventory is to be made 3. What ought to be inserted into the Inventory and what not 1. THe time appointed for the making of an Inventory and for exhibiting the same is left to the discretion of the Judge which he is to regulate according to the circumstances of Place Person Goods c. yet Regularly the Inventory ought to be begun by the Executor within Thirty dayes next after the Testators death or his notice of being made Executor and to be finished within Thirty dayes more after that or within a year if the Goods be remote else he may be charged for the whole debt 2. The Executor in making of an Inventory ought to call Two at least of the Testators Creditors or Legataries or upon their refusal or absence Two other honest persons and in their presence shall make a true and perfect Inventory of all the Testators Goods Chattels and Credits and the same shall be indented whereof one part shall be by the said Executor upon his Oath for the Truth thereof left in the Registry of the Court the other part to remain with himself In which Inventory the Testators Goods and Chattels are particularly to be valued and apprayzed at their true and just value And all such Goods and Chattels as are contained in the Inventory are presumed to have belonged to the Testator and now to the Executor and no more Therefore if a Creditor or Legatary affirm that the Testator had at his death more Goods than are comprised in the Inventory he must prove the same for such an Inventory by the Civil Law cannot be disproved unless the number of the Witnesses be twice as many in number as they which do Prove it And if the Executors or Administrators do make a True Inventory they shall not be charged further with any Debts than the Goods of the Testator or Intestate will extend But if the Executor Enter upon the Testators Goods without making an Inventory then the Presumption of Law will be against the Executor that he had Goods sufficient not only to pay the Debts but all the Legacies also So that the Reason is evident wherefore an Inventory is to be made viz. lest the Executor if otherwise than honestly disposed should defraud the Creditors or Legataries by concealing the Testators Goods 3. Generally all the Goods and Chattels whereof the Testator died rightly possessed some certain things for special Reasons and Legal reservations only excepted ought to be put into the Inventory And therefore Leases are not exempted Also Corn growing on the ground is to be put into the Inventory because it belongs to the Executor But not Grass or Trees so growing which belongs to the Heir Nor Glass-windows nor Wainscot Nor Tables Dormant nor Mangers nor any thing affixed any way to the Freehold Nor the Box or Chest containing the Evidences of the Land nor Doors Locks
from the deceased 4. If an Executor Sued do plead that he never was Executor nor Administred as Executor for that must be added then if Issue be taken upon this Plea and it be found against him the Plaintiff shall have Judgement to Recover not Dammages only but the Debt it self out of the proper Goods of the Executor if none of the Testators can be found Likewise as it is frequent in use for Executors to pay the Testators Debt with their own monies and to make themselves satisfaction out of the Testators Goods So it is most equal that Executors should with their own money discharge the Arrerages of Rent of those Leases the Profits whereof themselves enjoy by vertue of the Testators Will Therefore where an Executor is sued for Rent behind after the Testators death upon a Lease for years made to the Testator and by him left to the Executor here it shall be adjudged and levied upon the Executors own Goods for that so much of the profits as the Rent amounted unto shall be accounted as his own Goods and not his Testators Again if Executors plead Plene Administra and it be found for them and after that certain Goods of the Testator come to their hands in this Case if he which brought the first Action of Debt bring the same against them again the Action is well maintainable It is also to be remembred That the value upon an Appreyzment in an Inventory is not binding nor much to be regarded at the Common Law either for or against Executors for if it be too high it shall not prejudice the Executor if it be too low it shall not advantage him but the very true value as shall be found by the Jury when it comes in question whether the Executor hath fully Administred or hath Assets in his hands or not is that which is binding in the Law 5. Executors are lyable to satisfie the Obligations made by their Testators though they be not therein bound by Name Also an Action of the Case lyeth against an Executor upon an Assumpsit or the simple contract of the Testator especially where the ground of the Assumpsit is a true and real debt Also the Rationabilis pars bonorum by Custome in some places is maintainable for the Widow and Children against the Executors Also a Detinue lyeth against him for the Goods delivered to the deceased if the Executor doth still continue the possession of them Likewise an Action lyeth against the Executor for arrerages of account found upon the deceased before Auditors Also the Executor of a man that recovereth a Debt upon a Judgement had by the deceased shall be chargeable with restitution if the Judgement be reversed for Errour Also where a Prisoner dyeth in debt to a Goaler for his diet during the time of his imprisonment his Executor is lyable Likewise where one hath a Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Kings and delivereth it to him he then having money of the Kings in his hands if he dye without paying the same his Executor shall stand chargeable with the payment thereof Also the Executors of an Administrator are chargeable where he did neither pay the Debts nor leave the Goods of the Intestate to the next Administrator but otherwise disposed of them Yet an Executor is not chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge 6. But an Executor as hath been formerly implyed is not chargeable for any personal wrong done by the deceased for it dies with his person neither will an Action of Debt lye against him upon the simple Contract of the deceased but an Action of the Case only Neither will an Action lye against an Executor upon an Arbitrement made in the life-time of the deceased albeit it be made in writing Neither will an Action lye against an Executor for Costs given in Chancery against the deceased in a Sute there for it is lost when the party dies And where there be many Executors and all have accepted they must all be joyned in the Sute but if some of them have refused possibly the Sute may be good enough against the rest Otherwise one Executor cannot be charged without his Co-Executors except it be in the Case of Severance and in some special Case where one alone doth the wrong as where one Executor doth detain the Deeds from the Heir 7. Debt brought against the Executor of H. W. The Defendant pleaded That he never was Executor nor Administred as Executor The Jury found That the said H. W. died possessed of divers Goods and that one W. A. was indebted Seven Pound to him which theâ— Defendant had received and for which he had given his Acquittance and that immediately after the death of the said H. W. the Defendant took into his possession all his Goods converted them to his own use enjoy'd them and disposed of them to his own profit at his own will and pleasure And whether upon this matter of Fact the Defendant were Executor or not was submitted to the Court who were of Opinion That this matter of Fact was the Administration as of an Executor and that the Defendant should be charged accordingly Scire Facias upon a Judgement against a Testator in Debt brought against his Executors who pleaded That before they had knowledge of this Judgement they had fully Administred all the Testators Goods in payment of Debts upon Obligations It was adjudged no Plea for at their peril they ought to take knowledge of Debts upon Record and ought first of all unless Debts due to the Queen to have satisfied them It was adjudged accordingly Debt was brought by S. B. against D. B. and others Defendants Executors c. The Defendants pleaded Recovery against them by another in an Action of Debt and shewed the Contents of the Record to which it was Replyed That the Recovery was by Covin to defraud the Plaintiff of his Debt and hereupon Issue was joyned it was found by Verdict for the Plaintiff and agreed by all the Justices That the Judgement should be against the Executor as against the Testators Goods and not as against his own proper Goods being hereunto upon good Advice inclined for several Reasons 1. For that the Plea was a void Plea for the Record which the Defendant pleaded was such as the Plaintiff doth confess and avoid and not like that which is every way false as when one pleads that he never was Executor nor Administred as Executor c. which Plea being every way false and so within his own knowledge also doth for that Reason cause that Judgement in that Case shall be of his own proper Goods 2. Another Reason is That because such Judgement is most agreeable to Reason viz. To give the Plaintiff Recovery of his
after Argument at the Bar adjudged for the Plaintiff that it was not any Plea For they at their peril ought to take cognizance of debts upon Record and ought first of all unless for debts due to the Queen wherein she hath a Prerogative to satisfie them and although the Recovery was in another County than where the Testator and the Executors inhabited it is not material But if an Action be brought against them in another County than where they inhabit and before their knowing thereof they pay debts upon Specialties that is allowable wherefore it was adjudged accordingly Vid. 4 H. 6. 8. 21 Ed. 4. 21. Debt against an Executor who pleaded he had reines in ses mains but certain Goods distrained and impownded it was adjudged to be no Assets to charge him The Case was A. Covenanteth with B. to put his Son an Apprentice to C. or otherwise that his Executors shall pay B. Twenty pound A. doth not put his Son an Apprentice to C. and dyeth B. brings debt against the Executors of A. and it was Resolved by the Court That it lyeth not for Two Reasons 1. It cannot be a debt in the Executor where it was no debt in the Testator And if one Covenants to pay Ten pound debt lyeth against him or his Executors as 40 Ed. 3. 28 H. 8. Dyer are but if he doth Covenant that his Executors shall pay Ten pound an Action lyeth not against them 2. The first part of the Deed sounds in Covenant and the second part shall be of the same nature and condition Q. of this Reason Note Assumpsit by the Testator lies against his Executor in Case the Debt riseth upon a Loan and Promise of the Testator to pay and the Promise be for the payment of a meer debt and not to do any collateral Act and where the Testator himself by reason of such Promise could not have waged his Law in such Case his Executor is chargeable but upon a meer collateral Promise of the Testator an Assumpsit lies not against his Executor Such was the Opinion in Q. Eliz. time but now in Reg. Jac. the Opinion of both Courts was and resolved That the Action against the Executor lies as well in the one Case as in the other Scire Facias Sued by H. against W. Executor to his Father for Execution of a Judgment obtained against the Testator The Defendant pleaded Plenè Administravit at the time of bringing the Action and thereupon they were at Issue and the Jury found That the Testator conveyed a Lease in trust to one Fisher against whom the Executor had recovered One Thousand pound in Chancery which was come to the Executors hands Et si super tota materia c. Two Points in this Case were argued at the Bar and Bench 1. Whether the Plea of Plenè Administravit at the time of bringing the Writ were good in that Judgement was given against the Testator in his life-time and it was Ruled that it was not good but that in such Case the Executor should have pleaded There was nothing in his hands at the time of the Testators death because the Judgement bound him to satisfie that debt before others but by the joyning of Issue the advantage of that exception to the Plea was waved 2. Whether the Summ Decreed in Equity in the Chancery shall be Assets and they all agreed it should be Assets because the Jury found that by vertue of the Executorship it was come to the Executors hands 9 Eliz. Dyer 264. And money arising of the sale of Lands by Executors shall be accounted Assets Chapman and Daltons Case Plowd Also Dammages recovered by Executors pro bonis asportatis in vita Testatoris shall be Assets Vid. Pasch 39 Ed. 3. and C. B. Ordinary and Godfreys Case W. And others brought D. against the Defendant as Executor he pleaded Plenè Administravit And it was found by Verdict That the Defendants Wife was made Executrix who to defraud the Creditors had made a Deed of Gift of the Goods before her marriage with the Defendant and yet retain'd them in her possession and took the Defendant to Husband and died and the Defendant had now as much goods in his hands as would suffice to pay the Creditors their debts And the Court adjudged for the Plaintiff for that the Defendant confess'd himself Executor by pleading Fully Administred and therefore is chargeable because the property of the Goods passed not out of the Wife by that Grant being fraudulently made as aforesaid by the Stat. 13 Regin One sued an Executor in the Ecclesiastical Court for a Legacy who pleaded Recovery in debt against him at Common Law and beyond that he had not Assets wherewith to satisfie To which the Plaintiff in the Ecclesiastical Court Replyed That the Recovery was by Covin and that the Plaintiff in the Recovery offered to discharge the Judgement and the Defendant would not And hereupon the Question was whether a Prohibition should be awarded or not And it was Resolved That it should not be awarded for that the Covin or Fraud is properly examinable in the Ecclesiastical Court because the Legatee cannot sue for his Legacy at the Common Law Action upon the Case of Trover of Goods The Case was this a Recovery in the Exchequer was had against the Executor of P. of Debt and Dammages and Fieri Facias issued de bonis Testatoris si c. And if none then Damna de propriis the Executor dies the Sheriff levies Execution of the Testators Goods before the Return of the Writ and adjudged good notwithstanding his death after the Test of the Writ B. brings Debt against H. on a Demise for years to one unto whom H. was Administrator And the Writ was in the Debet and Detinet Whereupon in Arrest of Judgement it was shew'd in B. R. That it ought to have been in the Detinet only because against an Administrator But it was adjudged That it was good in the Debet and Detinet because the Rent due incurr'd in the Administrators time and the Land is not Assets but only so much of the Profits as the Land is worth above the Rents and the Administrator shall not answer for more than the Land is worth deducting the Rent But in all Cases where an Executor or Administrator brings an Action for a Duty Testamentary there it ought to be in the Detinet only because the Duty being demanded ought to be Assets An Executor is not chargeable for a Debt due by the Testator upon a simple Contract Regularly an Executor shall not be charged without Specialty in any Action wherein the Testator might wage his Law for that an Executor cannot wage his Law of other mens Contracts 46 Ed. 3. 10. b. 11 H. 6. b. Information in the Exchequer in nature of an Account was brought against D. Executor of W. M. supposing that W. M. had received money of the Queens amounting to One
Lease for years worth Fifty pound per annum or more out of which he payes Ten pound yearly Rent and dies in this Case not the full value of the Land yearly but only so much as is above the said Rent shall be deemed Assets in the hands of the Executor or Administrator Or suppose the deceased dies possessed of Goods and Chattels to the value of Two hundred pound and in debt to M. Two hundred pound and to N. One hundred pound and to O. Fifty pound and to P. Twenty pound and Composition is made with M. for Sixty pound or other Summ more or less under Two hundred pound In this Case the Executor is deemed to have Assets chargeable to the other Creditors for so much as is above the Summ so compounded unto Two hundred pound Or where a man is indebted Forty pound to one and Thirty pound to another and dies leaving but Forty pound in all and his Executors agree with the Creditor of Forty pound for Ten pound and have his Acquittance for the Forty pound yet the Thirty pound remaining in their hands shall be Assets 2. If Executors do Recover any Dammages for Trespass or other wrong done to the Testator the money recovered will be Assets in their hands as well as Debts recovered upon Bonds or Bills or Lands by them taken in extent upon Statutes Recognizances or Judgements Yea without ever having these monies Executors may make them Assets in their hands viz. by making Releases or Acquittances or Acknowledgement of Satisfaction for this amounteth to a Receit and chargeth the Executors towards the Creditors with the whole penal Summ though possibly they receive but part as the Principal or some such proportion But Debts or Dammages recovered by a Judgement had by the deceased in his life-time whereof no Execution was are not Assets in his Executors or Administrators hands until Execution be made yea though Execution be made and the Dammages so recovered that they be gotten into the Executors hands or possession yet if the Judgement be Erroneous and the Execution avoidable it shall not be deemed Assets in his hands for which Cause a Debt Sued and Recovered by one as Administrator to A. B. and afterwards a Testament made by A. B. produced and proved is not Assets in the Administrators hands because the Executor in the said Testament may recover it from him 3. A Mortgage Redeemed is Assets unless the Executors redeemed it with their own money Likewise Goods of the Testators redeemed by the Executor with the Testators money are Assets in the Executor it is otherwise if the Executor having no monies of the Testators doth redeem them with his own money If the Testator grant a Lease for years or Horses Sheep Plate or other Cattle unto A. upon some Condition that A. did not perform after the Testators death in this Case the Chattel reverts and comes back to the Testators Executors and is Assets in their hands Also if A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be Assets in his hands because the Executor shall have the Term only as Executor So if A. undertake to deliver in to B. Twenty loads of Coles Wood or other Merchandize whatsoever and this is not performed in the life of B. but afterwards to his Executor this shall be Assets in his hands as well as the money recovered in Dammages for non-performing should have been Likewise any Goods or Chattels whatsoever given or bequeathed to any person by the Testator upon a Condition certain and the Condition not afterwards performed by such Conditional Legatary the said Goods and Chattels conditionally bequeathed do revert to the Executor and become Assets in his hands 4. Encrease gotten to the Executors by Merchandizing with the Testators Goods shall be Assets in their hands and shall charge them Likewise Dammages recovered by an Executor in an Action of Trespass shall as aforesaid be Assets and yet they were never in the Testator Also if a Lease be made to one for life the Remainder to his Executors for years and he dieth this will be Assets in the hands of his Executors though it never were in the Testator So where a Lease for years is bequeathed to A. for life and after to B. who dieth before A. although B. never had this Term in him so as that he could grant or dispose it yet shall it rest in his Executor as his Goods and be Assets in his Executors hands Likewise a Remainder for years so in the Testator that he might grant or dispose it at his pleasure though the same fell not in possession to the Testator in his life-time yet this is Assets to the Executor even whilst it continues a Remainder and before it falleth into possession because it is presently valuable and vendible In like manner Gain gotten by Trading as aforesaid with the Testators money Wool growing upon Sheep after the Testators death also the encrease of Sheep or other Cattel after the Testators death though never in the Testators actual possession shall yet be Assets in the Executor Likewise a Feoffment made to the Feoffors use for life and after him to the use of his Executors or Assigns for a certain number of years that number of years shall be Assets in the hands of the Feoffors Executor Also Goods hypothecated or pledged to the deceased in his life-time and not redeemed or the money thereof when redeemed is Assets in the Executors or Administrators hands Likewise the money raised by the Sale of the deceaseds Lands sold by his appointment by the Executors for the payment of his debts as when the deceased did in his life-time appoint that his Executors shall sell his Lands to pay his debts shall as aforesaid be Assets in the Executors hands Also if Executors had a Villein for years and the Villein purchased Lands in Fee and the Executors entered they had a Fee-Simple but it was Assets The reason was because they had the Villein in auter droit viz. as Executors to the use of the dead And if Executors having Assets do wast it or pay Debts or Legacies in any other order or method than the Law hath prescribed they must answer it out of their own Estates 5. Debts due to the Testator be not Assets in the Testators hands so as to charge him for the payment of Debts and Legacies until Judgement and Execution had or they be otherwise recovered received or released by him And an Executor paying the just value of the Testators Goods to the Creditors may retain the same Goods in his hands which nevertheless shall not afterwards charge the Executor as Assets But if question be concerning the value it is received by all that the
Fenner held that they should not be Assets for although being but fraudulent it shall be said to be a void Gift against the Donor and Creditor and so lyable to his debt yet it is good betwixt the Donor and Donee and shall not be Assets in the hands of any but the Donor or Donee but here the Husband is a meer Stranger thereto wherefore c. But all the other Justices è contra for that by the Common Law the Gift being fraudulent they are lyable to the Plaintiffs Execution And Popham said If the Gift were good against all but Creditors as it is then they belong to the Donee and in his hands are lyable to this debt and if the Gift be void they remain to the Executors of the Feme and then the Baron having taken them and paid Legacies is chargeable by reason thereof as Executor de son tort demesne and so those Goods quacunque via data are lyable to this debt in whosesoever hands they come unless by Title Paramount or by Sale bonâ fide wherefore it was adjudged for the Plaintiff Scire facias against S. as Executor of F. V. upon a Judgement given against the Testator of Two hundred pound he pleaded payment of Forty pound debt due to the Queen and besides that he had riens in ses mains And thereupon they were at Issue whether he had Assets And it was found by special Verdict That the Testator was possess'd of divers Goods to the value of Two hundred fifty pound and by covin to defraud his Creditors made a Gift of his Goods to his Daughter with a condition of payment of twenty shillings that it should be void and died The Defendant intermedled with the Goods and afterwards the Daughter by this Gift took the Goods and after that Administration of the Goods of F. V. was committed to the Defendant and whether upon this matter he shall be charged as Executor and that those Goods should be Assets in his hands was the question And after Argument it was adjudged for the Plaintiff For first when he medled with the Intestates Goods although he were neither Executor nor Administrator and afterwards Administration was committed unto him a Creditor hath election to charge him as Executor or Administrator especially here when he pleads as Executor the finding by the Jury that he is Administrator is not to purpose 9 Ed. 4. 53. 2 R. 3. 20. 21 H. 6. 8. Secondly all the Court held That this Gift of the Goods is in it self fraudulent as appears by the Condition and the Covin is expresly found by the Jury and then it is utterly void against the Creditors by the Stat. of 13 Eliz. and the Intestate died possessed of them and when afterwards the Donee took them it was a Trespass against the Administrator for which he hath his remedy and they are alwayes Assets in his hands But if a Trespasser takes Goods from a Testator in his life-time so as they never were but a chose in Action to the Executor or Administrator they be not Assets until they be recovered Wherefore notwithstanding the taking of them by the Donee yet they alway remained as Assets in the hands of the Administrator and therefore he is chargeable for them as Executor de son tort by his intermedling with them before Administration committed and the Goods by Law remained alwayes in his possession Wherefore it was adjudged for the Plaintiff CHAP. XXV Additionals to the three last precedent Chapters touching how far and wherein Executors may be charged 1. Executors not chargeable upon a simple Contract of the Testators 2. Actions of Account lye not against the Executors of the Accountant 3. Personal Actions lye not against Executors as Executors 4. Executors lyable for no more than comes to their hands 5. The Husband not lyable for his Wifes debts after her decease 6. In what Case the Ordinary may be sued for the deceaseds debts 7. How an Executor may make himself chargeable de bonis propriis 8. The method of proceedings where Execution is de bonis propriis 9. Executors obliged though not mentioned in the Obligations 10. Contracts dissolved by Obligations after made 1. VVHerever the Testator might wage his Law there the Action lyeth not against the Executor therefore he is not chargeable upon an Action of Debt upon a simple Contract yea though such a debt grew for the most necessary things as Meat and Drink which bindeth even an Infant to payment yet will it not charge the Executor of a man of full Age so that though a common Host or Victualler trust his Guest he loseth his debt by his death Understand these things of Contracts only by word for where the Testator in his life-time did put his Seal to any Deed or Writing made upon any such thing this being then more than a simple Contract taketh from the Vendee his wager of Law and thereby chargeth his Executor But if the Testator Seal only unto a Tally or the like with Scotches expressing a debt this is no such specialty as shall charge his Executors And although no Action of debt lyeth against the Executor as aforesaid upon a simple Contract yet may the Creditor in that Case maintain an Action upon the Case grounded upon the Assumption implyed though not express'd And thus indeed the Executor is charged in substance or matter for a simple Contract though not in manner for a debt but as for breach of promise making recompence in dammages instead of the debt 2. No Action of Account lyeth against Executors except for the King that is against the Executors of the Accountant Nor indeed at the Common Law for the Executors of him to whom the Account is to be made but that is help'd by Statute For Executors could not have an Action of Account at the Common Law in respect of the privity of the Account but the Stat. W. 2. cap. 23. hath given an Action of Account to Executors the Stat. of 25 Ed. 3. cap. 5. to Executors of Executors and the Stat. of 31 Ed. 3. cap. 11. to Administrators And as an Executor is not chargeable in an Action of Account as aforesaid so neither is he chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge or custody 3. Although Executors are in Law understood as the Representees of their Testators persons yet if the Testator in his life-time commit any Trespass either upon the Person Lands or Goods of another no Action lyeth against his Executor for the same the reason is Actio personalis moritur cum persona as hath been formerly declared Hence it is that there is no remedy in Law to compel Executors though they have Assets to make satisfaction of a Trespass done by the Testator in his life-time for every Trespass dyeth with the person And therefore also it
in the Womb at the Testators death seems to be void Yet if a Man Devise to such an Infant and he happen to be Born before the Testators death it seems that in this case the Devise is good Again A Devise made to a person altogether uncertain and not certainly Named or Described is altogether void yet a plain Description of a Person without naming him is sufficient so that a Devise made to the Dean of Pauls without naming him is good A Man Deviseth his Land to Elianor the Daughter of I. S. who hath divers Daughters whereof one is named Hellen and none Eleanor This is a good Devise to Hellen. Likewise if a Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it or if he hath Two Sons called John and one of them is a Bastard born before Marriage and he makes a Devise to his Son John the Legitimate John shall have it and not the Bastard The Husband can be no Devisee as to a Devise of Lands from his Wife There are Three Brothers by the same Father and Mother and the middle Brother Seized of Land Deviseable giveth it by his Testament Propinquiori fratri suo it seems that neither of them shall have it Suppose a Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth leaving Executors his Heirs shall have the Land and not his Executors the Law is otherwise in case the Entire Term were so Devised A Devise of Land made to the Canons of a certain Cathedral for ever or Canonicis Ecclesiae D. Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty If a Man willeth that his Executors shall Sell his Land for the Payment of his Debts and they all die save one who maketh the Sale in this case the Vendee shall not have the Land the Law were otherwise if the Land had been Devised to the Executors to be Sold. If a Man hath Issue a Son and Land is Devised to the Father Habend sibi Hered de Corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land If a Man Deviseth by the Will That after the death of his Wife the Land Devisable shall go to I. S. his Wife shall have it for her Life by this Devise Or if a Man willeth that after 20. Years after the death of the Devisor I. S shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 5 A Testament Nuncupative is not good for a Devise of Land nor a Testament made in Print if it were never written yet a Testament written though no Executor be named therein is good for Lands but not for Goods Likewise a Testament without Sealing or Subscribing is good enough for a Devise of Land so as it be put into Writing in the Testators Life Time although it be never proved before the Ordinary But if in a Testament there are these words viz. Haec est voluntas intentio mea A. B. c. This is not good for the disposition or devise of Land without saying ultima voluntas according to the Lord Dyers Opinion who in his Learned Readings on the Stat. of Wills 32. and 38. H. 8. if he were indeed the Author of that Impression 1648. doth further Affirm That if a Man makes a Testament of his Land in one County and long after makes a Testament of his Land in another County These are good Also that if Two Men severally Seized of Lands make a Joynt-Testament of their Land This shall be good and several Testaments Also that where a man is in making his Testament and having Devised a parcel of his Land dies before the perfection and finishing thereof This shall be good for so much as is Devised That a Man willing by his Testament that his Lands shall be Sold to pay his Debts not declaring by whom This is a good Will and shall be performed by his Executors or Administrators That a Man making a Will of Land in which he hath nothing and after Purchaseth the same Land and dyeth This is not good That a Woman Covert making a Will of her Land and after taking a Husband who hath Issue the Husband dyeth the Wife dyeth this is not a good Will That if a Man make a Will of his Land and after alien this Land in Fee and after repurchaseth the same Land This is not a good Will That a Man making a Will and after making a new Will and after on his Death-bed saith That the first Will shall be his last Will This is good Also that where a Man giveth Land by his Will in Fee and after by another Will giveth the same Land to another but for Term of Life This is a Revocation of the Entire first Will. Also if a Man Devise another Mans Land This Devise is void but if he after the Devise made Purchase this Land then the Devise is good CHAP VIII Certain Cases touching Devises of Land Void or not 1. Lands What and how Devisable 2. Certain void Devises of Land 3. To what Persons and in what Cases Devises of Land may be good or not 4. The same Lands twice Devised to several Persons in the same Will how both Devises may stand good 5. The Profits of Land Devised do pass the Land it self in which Case Testaments more favourably construed then Deeds 6. How Lands Purchased after a Devise of Lands made may pass by that Devise or not 7. Several Cases in Law referring to this Subject 1. ALthough Lands made Devisable by Statute cannot be Devised otherwise then by Will in Writing yet Lands and Tenements Devisable by Custom may be Devised by a Nuncupative Will without any Writing But Copy-hold Land is not Devisable nor can Tenants in Tail or pur auter vie or Joynt-Tenants Devise their Eestate in the Land they so hold no more then they could before the making of the said Statute which doth not impower them thereunto But such as are Seized of Land in Common or Coparcenary may devise the same And if there be Two Joynt-Tenants for Life and the Fee-simple to one of them he that hath the Fee-simple may Devise his Fee-simple after the death of the other Joynt-Tenant for Life And in such places where Lands were Devisable by Custom before the making of the Stat. of 32. H. 8. a Devise of Lands may be good against the Heir for the whole but by the Stat. impowering to dispose of Lands by Will a Devise of Land is not good against the Heir save only for Two parts in Three 2. He that Deviseth Land ought to have a Right to and possession of the Land he Deviseth otherwise the Devise is not good and therefore if
to rest in Peace Vide 4. Ed. 6. tit Estates 78. 29. H. 8. Br. Testam 18. Dyer 371. Wellock Hamonds Case 32. 33. Eliz. Cited in Borastons Case Co. 3. 20 21. And Colliers Case Co. 6. 16. A Man by the Premises of his Will Deviseth his Land to I. S. in Fee and by the Sequele he Deviseth the same Land to I. N. in Fee they both shall take by this Testament and shall be Joynt-Tenants A Devise made Canonicis Ecclesiae Catholicae Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty the Law is otherwise in Case of a Devise made Civitati Lond. in perpetuum the Corporation of the Mayor and Commonalty shall take by this Devise A Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it Likewise if one hath Two Sons called I. and one of them is a Bastard and Born before Marriage and he makes a Devise to his Son I. the Legitimate I. shall have it and not the Bastard A Man hath Issue a Son and Land is Devised to the Father Habend sibi Haered de corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land A Man Seised of Three Messuages Devised by his Testament to his Son A. one of them Naming it and A. to enter after his Wives death and Devised another of the Messuages to his second Son paying 10 l. to his Sister and he to enter at his Age of 21. Years and Devised the Third Messuage to his Third Son in like manner as to his Second Son And after in his Testament willed That if either of his Sons dyed before 21. Years of Age that then his part should be divided among the Survivors and each of them to be the others Heir they all attain to the full Age and the Two Younger Sons paid their Sister the several Sums as was appointed in the Will The Question being what Estate the Two Younger Sons had in those Messuages Devised them by the Will it was held a Fee-simple CHAP. X. Certain Cases touching Devises of Land by way of Entail 1. How Lands Devised by way of Entail may happen to be devested out of one and be vested in another upon the birth of an Issue in Tail 2. Tenant in Tail may not by any Devise Condition or Limitation be Barred from Alienating by suffering a Common Recocovery 3. A Difference in Point of Entail between Devises by Will and Grants by Deed. 4. The several ways of Entails by Devise with the difference between Devising Semini suo and Sanguini suo 5. The Question whether Issue born or not at the time of making the Devise may put a difference between an Estate-Tail and Joynt-Tenancy 6. What shall be a Fee-simple by Deed which is but an Estate-Tail by Devise 7. In what Case the Younger Son may have Fee-simple and the Elder but an Estate-Tail 8. Otherways how an Estate-Tail may be Created by Devise 9. Instances of Law for further illustration of Entails by way of Devise 10. In what case the Word Or shall be taken for And to Create an Estate-Tail by Devise 11. Other Cases of Estates-Tail by Devise with Cross-Remainders 12. An Estate-Tail by Devise with implyed Remainder 13. How there may be a Devise of an Estate-Tail of Rent as well as of Land and how a Tail limited to some Lands shall not extend to others therewith Devised 1. A Man Seised of Lands in Fee Devised them to his Wife for life and after to his Two Sons if they had not Issue Males for their lives and if they had Issue Males then to their Issue Males and if they had not Issue Males then if any of them had Issue Male to the said Issue Male The Wife dyed the Sons entred into the Lands and then the Eldest Son had Issue Male who afterwards entered the Younger Son put out the Issue In this Case the Lands by the birth of the Issue Males are divested out of the Two Sons and vested in the Issue Male of the Eldest and he hath an Estate-Tail therein 2. A Man Seised of Lands in Capite Devised them to his Wife for life and after her decease his Son John to have it and if his Son John marry and have by his Wife any Issue Male of his Body Lawfully begotten then his Son to have it if no Issue Male then his Son Thomas to have the House and if Thomas marry having Issue Males of his Body his Son to have the House after his decease And if any of his Sons or Issue Males go about to Alien or Mortgage the House then the next Heir to enter c. In this Case it was 1 Resolved That the Sons had an Estate-Tail in them severally and to the Heirs Males of their Bodies for that these words if he have no Issue Male his Son Thomas to have it are sufficient to create Tail to John and so of the rest 2 Resolved That no Condition or Limitation be it by Act Executed or by Limitation of Use or by Devise by last Will can Bar Tenant in Tail to Alien by suffering a Common Recovery 3. If a Devise be made of Land to A. B. and the Heirs Males of his Body and he hath Issue only a Daughter who hath Issue a Son the Son shall not take by this Devise Or if such Devise be made to him and the Heirs Females of his Body and he hath Issue only a Son who hath Issue a Daughter she shall not take by this Devise And here Note That in point of Entails there is a Difference between Devises by Will and Grants by Deed for if a Devise of Land be made to A. B. and to his Heirs Males by this Devise A. B. hath an Estate-Tail Otherwise it is if such a Limitation be made 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 General shall have it But if a Devise of Land be to A. B. and to the Eldest Heirs Females of his Body by this Devise all his Daughters and not one of them only shall have it And if a Man Devise his Land to his Wife for life and after to his own right Heirs Males and he hath Issue Three Daughters whereof one after his death hath a Son In this Case and by this Devise the next Collateral Heir Male of the Devisor and not the Son of the Daughter shall have the Land If a Man Devise his Land to A. B. and to his or to the Heirs Males or Heirs Females of his Body or of his Body begotten or to him and his Issues Male or his Issues Female or to him and the Heirs Male of his Body begotten on M. or to him and E. his Wife and the Heirs
well as by any other words 7. The Residue of a Term is as the Term it self 8. A Man may Devise such an Estate by Will which he cannot make by Act Executed Or he may Create an Interest by his Will which by Grant or Conveyance in his life time he could not do 9. That may be the Devise of a Lease for Years in Law which doth not seem to appear such in Fact 10. The whole Term though not named shall pass by a Devise where no other can pass by Implication 1. IF one Devise his Land unto his Executors until his Son shall come unto the Age of 21. Years the Profits to be imployed towards the performance of his Will and when he shall come to that Age that then his Son and his Heirs shall have it By this Devise the Executors shall have it until he be of 21. years of Age and if he die before that time the Executors shall also have it until the time he should have been 21. Years of Age if he had lived so long and the word Shall in this case is taken for Should Likewise if one Devise his Land to his Executors for the payment of his Debts and until his Debts be paid by this Devise the Executors have but a Chattel and an uncertain Interest and they and their Executors shall hold it until the Debts be paid and no longer 2. If one Devise his Land to A. B. and the Heirs males of his Body for the Term of 99. Years it seems that by this Devise A. B. hath but a Lease for so many Years if the Heirs Males of his Body shall so long continue and that for want of Issue Male the Term of Years shall expire And in this case the Executor or Administrator not the Heirs Males of A. B. shall have it after his death 3. If one possessed of a Term of Years Devise the same to another and his Heirs or his Heirs Male by this Devise the Executors or Administrators not the Heirs of the Legatee shall have it So that if a Lessee for Years of Land Devise all his Interest therein to his Wife if she live so long and after her death if any part of the Term be to come Devise the same to A. B. his Son and to the Heirs of his Body in this Case and by this Devise the Executors or Administrators of A. B. and not his Heirs shall have it 4. If a Man Devise all his Lands and Tenements in D. yet Leases for Years do not pass by these words for by Lands and Tenements is intended Frank-tenements or Free-hold and not Chattels 5. If one hath a Lease for Years of Land and Devise it to A. B. for life by this Devise the whole Term is Devised and A. B. shall have the whole Term if he live so long and yet A. B. shall not have an Estate for life by this Devise So likewise the Law seems to be the same upon a Grant by Deed made in that manner And if a Man possessed of a Term of Years of Land Devise his Term or his Lease or the Land it self by a Devise in either of these words the whole Term doth pass A Term of Years is Devised to the Church-wardens of the Church of D. and to their Successors This is not good but for Goods so Devised the Law is otherwise A Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth and hath Executors his Heirs shall have the Land and not his Executors The Law is otherwise if the entire Term were so Devised 6. If a Lessee Devise his Lease or his Term or his Farm or his Profits Tenure or Occupation thereof by either of these Devises his whole Lease and all his Interest in the Land is bequeathed as well as by any other form of words But if a Man Devise his Land only for so many Years as his Executor shall name it seems this Devise is not good Yet if it be for so many Years as A. B. shall name and he name a certain Number of Years in the Testators Life Time this is a good Devise 7 A Man possessed of a Term of Years may Devise all the Residue of that Term of Years that shall be to come at the Time of his death And if a Testator having only a Term of Years in certain Lands doth Devise the said Land to A. B. and doth not say for what Time it seems that by this Devise the whole Term is devised unless the Testators Intent doth appear to be otherwise 8. A Man possessed of a Term for 40. Years by his Will Deviseth the same to I. S. after the death of his Wife and that the Wife should enjoy it during her life and that I. S. should neither Devise it nor Sell it but leave it to descend to his Son and in the mean Time my Will is That my Wife shall have the use thereof during her life yielding 10 l. Yearly to I. S. during her life at Two Feasts and made his Wife Executrix and dyed The Wife entered and paid the 10 l. Yearly according to the Will In this Case Three Points are Resolved 1 That I. S. doth not take by way of Remainder but by way of Executory Devise And a Man may Devise such an Estate by his Will which he cannot make by Act executed And that the Case is no more but this That after the death of I. S. the Wife should have the Residue of the Term. 2 The Devise is good being but a Chattel which may vest and devest at the pleasure of the Devisor 3 That there is no difference when one Deviseth his Term the Remainder over and when a Man Deviseth his Land or his Lease or the Use or Occupation or the Profits of his Land That a Man by his Will may Create an Interest which by Grant or Conveyance he cannot Create in his life Time 9. A. Devised his Lands to his Daughter and her Heirs when she came to the Age of 18. Years and that the Wife should take the Profits of the Land to her Use without any accompt to be made until the Daughter come to 18. Years and made his Wife his Executrix and dyed provided the Wife should pay the old Rents and find the Daughter at School the Wife enters proves the Will takes Husband and dyes It was found that all the Conditions were performed and that the Daughter was within the Age of 18. Years It was Resolved in this Case That it was a Term for Years in the Wife and a good Lease 10. A Man was Lessee for 40. Years of a House and by his Will gave the House to I. S. without limiting any Estate That he should have in it It was the Opinion of the Court That he should have the whole for no other Estate in the House either for Life or at Will shall pass by Implication or for one Year
should Devise the. Immoveables only Indefinitely or design this Money only to be Let out at Interest There is a great quarrel among the DD. for this Engine of all mischief is of a very Metalsome quality whether Money actually out at Interest be within the notion of Moveables some affirm it others deny it comprising it under the notion of Debts which seems most rational But Money in Cash hath gain'd the more received opinion of its being comprehended within a Legacy of Moveables albeit it happen to be much in quantity or designed for a Purchase so as it be not for that end of a great quantity But in such Places where by common usage of Speech Houshold-goods are mainly and frequently meant or intended by the word Moveables or if it be such Money as was only designed by way of Trade for Merchandise the Testator being also a Merchant and the quantity be great or if the Testator bequeath all his Moveables in such a House excepting none at all In all such cases Money how acceptable soever it otherwise be yet is not admissable to any comprehension within a Legacy of Moveables Nor when any certain place is added to the Legacy as if the Testator should say I give my House to A. B. with all the things therein none excepted No Money found hid in the Wall of a House albeit the Testator should say be the Moveables of what kind or Condition soever 10. And as for Debts Bonds and Obligations for Money owing they are not within a Legacy of Moveables be the place where they are added or not added to the Legacy but make of themselves a third kind of Goods distinct from the former unless in such places where Custom prevails That Obligations touching things Moveable shall be computed among the Moveables and touching things Immoveable bequeathed among the Immoveables 11. If the Testator saith I give part of my Goods to A. B. he shall have the Moiety thereof for by saying a Part and not what Part the one half is regularly to be understood yea though the Testator himself had but the one half of the thing bequeathed yet the Legatary shall have a Moiety of that half and albeit the Testator should say a certain part But if he saith any part or what part soever then be it never so little the Legatary must therewith be content and the Executor is discharg'd 12. Lastly whatever was formerly said touching that Litigious subject of Money though by some formerly held as none of the Testators Goods or Chattels either Moveable or Immoveable yet now the Law understands Money better than to exclude it out of that notion and the opinion is now as Currant as Money it self That it is part of the Moveable Goods of the Deceased unless it be Money arising of the Sale of Lands Tenements Or Hereditaments appointed by the Testator in his last Will and Testament to be sold or Money comming of the Profits of the said Land for any time to be taken This Money is indeed by the Statutes of this Realm excluded from being reputed as any of the Goods or Chattels of the person so Deceased 13. Also by a Bequest of Moveables will pass the Industrial Fruits of the ground or such as are there sown by the Industry of Man in expectation of a speedy removal thence with increase But not the Natural Fruits or such as grow of their own accord without any great labour or cost for these are not reputed Moveables unless they were separated at the time of the Testators death Thus Trees and Grass together with the Land whereon they grow descend to the Heir as parcel of the Freehold But the Corn growing thereon belong to the Executor as part of the Testators Goods and Chattels 14. Where one bequeaths all his Goods and Chattels or all his Corn or all of any other thing by such bequest doth pass not only All the Testator hath of that thing at the time of making his Testament but also All he hath thereof at the time of his death And not only the All thereof which he hath in Possession but also what thereof he hath not in Possession but Expectation But if he limit this All to a certain place or as to or in the occupation of some certain person then no more will pass by such Bequest than what he hath in such Place or in the occupation of such a person at the time of making the Testament 15. And therefore a man may bequeath by Will not only those things which he hath at the time of making thereof but also such things as he is to have or may have afterwards Thence he may bequeath the Corn that shall grow in such Ground the next year after his death or the Wool or Lambs his Flook of Sheep shall yield the next year after his death But in case there shall be no such Corn Wool or Lambs the next year then the Legacy proves fruitless Yet if the Testator bequeaths 20 Quarters of Corn or 20 Lambs and doth Will that the same shall be paid out of the Corn that shall grow or out of his Flock the next year and there be no such Corn or not so many Lambs the next year yet the Devise is good and must be paid The Reason of the difference is because in the former Case there is such a Restriction and Limitation set to the Legacy as renders it questionable whether it might ever become due or payable In the latter there is only Demonstration how it shall be paid and nothing of any such Restriction as calls the Legacy it self into question In the former there is a tacite Condition in the latter the Legacy is Absolute CHAP. XXII Law-Cases touching Money Bequeathed by the Testator 1. IN the last precedent Chapter it hath been Examined how far Money may be comprised under the notion of Goods Moveable or Immoveable bequeathed It follows now that for the clearer illustration of this Desirable subject we insert certain Cases in the Law touching the same And because when Money is bequeathed it often happens that a more than ordinary power is given to or Latitude left in the Executor by the Testator It is requisite in the first place to see how far a Legacy of Money left to the will of an Executor is good or not which cannot well be Resolved without considering the several ways of disposal thereof as thus viz. 2. The Testator saith I would have 10 l. given to A. B. if my Executors mind were not against it In this case A. B. cannot have the 10 l. unless he can first obtain the Executors consent for it because a Legacy in that manner given is tacitely Conditional and first requires the Executors Approbation even by the Testators mind and intention for the performance thereof But if once the Executor gives his consent he must then pay the 10 l. and cannot
be certain though the Legatary dies before it comes the Legacy shall accrew to his Executors for in that Case the Legacy was due at the Testators death though not payable till that day certain be come But if the day or time be altogether uncertain the Legacy is then as if it were Conditional And the breach or non-accomplishment of a Condition in it self Lawfull and Possible doth either suspend or extinguish the Legacy And as to that frequent Condition relating to Marriage so commonly annexed to the Execution of a Legacy it is not Impertinent here to insert That albeit a Condition absolutely against Marriage is unlawfull yet not so if it be only against Marriage with such or such a Person or with such kind of Persons and therefore the Condition is good if the Testator gives his Daughter 100 l. under this Proviso That she Marry with a Merchant or a Merchants Son otherwise the Legacy to be void In which Case if she Marry first with a Merchant and after his decease with another who is not a Merchant nor a Merchants Son she shall loose her Legacy 26. Lastly The Legacy is but equivalent to a Cypher by the voluntary waiver and refusal of the Legatary declaring his dissent thereunto As also by the Actual and total destruction of the Thing it self Bequeathed for if neither the Quantity nor the Quality thereof can appear the Legacy is void Hence it is That the Bequest of a Debt is void if Payment thereof be made to the Testator in his life time otherwise if after his death it be paid by the procurement of his Executor But if the Testator himself doth exact the Debt the Legacy thereof is extinguish'd Otherwise if paid to the Executor by whose default if any other thing Bequeathed doth perish it shall be no loss to the Legatary nor any loss to him in Case the Legacy be something in general as a Horse or an Oxe not saying which or in Case the Legacy consist in Quantity as so many Bushels of Corn not saying of what Grain or in what Garner or Granary In which and other like Cases the Legacy is not void albeit the Thing so Bequeathed shall uttterly perish Upon Evidence in Trespass the Case was A. made his Will in writing and thereby Devised his Lands to E. H. and her Heirs and afterwards lying sick because the said E. H. did not come to visit him he Affirmed That E. H. should not have any part of his Lands or Goods It was the Opinion of the Court That it was no Revocation of the Will being but by way of Discourse and not mentioning his Will But the Revocation ought to be by express words that he did Revoke his Will and that she should not have any of his Lands given her by his Will Lands Devised by Will to one and after a Feofment thereof made by the Devisor to another the said Devise is Revoked by such subsequent Feofment As in the Lord Bourchers Case touching his Will made 23. H. 8. Note By all the Justices upon an Evidence to the Jury in an Ejectione Firme That if a Man hath a Lease and disposeth of it by his Will and afterwards surrenders it up and takes a new Lease and after dyeth That the Devisee shall not have this last Lease because this was a plain Countermand of his Will A Feme Sole was Seized of Lands in Socage and by her last Will Devised them to I. S in Fee and afterwards she took the Devisee to Husband and during the Coverture she Countermanded her Will saying That her Husband should not have the Land nor any other Advantage by her Will. It was Adjudged upon great deliberation that it was a Countermand of the Will the words being spoken after Marriage for the making of a Will is but the Inception thereof and takes not Effect till the Devisors death One Devised Lands to his Sister in Fee and after made a Lease to her for Six Years of the Lands to begin after his Decease and delivered it to a Stranger to the use of his Sister which Stranger did not deliver it to her in the Testators life time and she Refused and Claimed the Inheritance In this Case it was Resolved because the Devise and the Lease made to one and the same Person beginning at the same time cannot stand together in one and the same Person That it was a Countermand of the Devise But it was there Agreed by all the Justices That if the Lease had been made to any other than the Devisee they might stand together and the Lease should not have been a Revocation of the Will as to the Inheritance but only during the Term. In an Ejectione Firme upon Evidence to a Jury It was Resolved by the whole Court That if one maketh his Will in Writing of Lands and afterwards upon Communication saith That he hath made his Will but that shall not stand Or I will Alter my Will c. That these words are not any Revocation of the Will for they are words but in futuro But if he saith I do Revoke it and bear witness thereof hereby he absolutely declares to Revoke it in praesenti and it is then a Revocation And in this Case it was Agreed by the Justices That as one ought to be of good and sane Memorie at the disposing so he ought to be of as good and sane Memorie at the Revoking of it And as he ought to make a Will by his own directions and not by Questions So he ought to Revoke it of himself and not by Questions If a Man Devise 20 l. to the Poorest of his Kindred it is void by Reason of the uncertainty whom the Court shall judge the Poorest A Legacy of 20 l. given by a Testator to his Daughter to whom his Executor gave Bond in 40 l. for payment thereof according to the Will The Daughter takes Husband who sued the Executor in the Ecclesiastical Court for the Legacy The Ex-Executor pleaded payment according to the Bond and because the Ecclesiastical Judge would not allow the Plea the Executor brought a prohibition shewing by way of surmize the matter aforesaid Tanfield Serjeant moved for a Consultation because the Suit was for a Legacy which is of Ecclesiastical Cognizance And albeit the Executor pleaded Payment which is not there allowed yet he ought not to have a prohibition because Payment is a good Plea in that Court and if the Judge there will not allow it the other may appeal to the Superiour Judge and if this should be suffered in the Case of a Legacy then the Ecclesiastical Court should trie nothing But according to Gandy Fenner and Yelverton Justices the Surmize is good for the Executor by entring into Bond to the Daughter for Payment of the Legacy had Extinguish'd the Legacy and had made the 20 l. Devised a Debt Suable meerly at the Common Law and not
100 l. if he will accept of it in such Case the Legacy is lost if the Legatary knowing thereof die before he hath declared his Will or Acceptance The Reason is because the Legataries Will and consequently the power of accomplishing the Condition is not Transferrable to another For 77. The Legatary cannot Transmit his Legacy to his Executor or any other before the day of payment thereof come 78. An Annual Legacy or a Legacy of an Annuity is payable at the beginning of Every Year unless the Testator doth otherwise fix the times of payment 79. A Legacy left at a day uncertain when it will be but certain that it will be is not due unless the day happen in the Legataries life time 80. A Legacy given by the Testator to his Kindred in general is due to such as were not of Kin to him at the making of his Will so as they be of his Kin at his death 81. In an alternative Legacy wherein the Executative words are directed neither to the Executor nor to the Legatary as when the Testator saith I give my House or 100 l. to A. B. the Election belongs to the Legatary not to the Executor The Reason is because the Law so favours Testaments as that they shall be interpreted with as Extensive a Latitude as possibly may consist with the Testators mind and meaning 82. If the Testator saith I Bequeath or Commit my Estate as well as my Soul to God Whoever hath his Soul his Parish Church shall have his Estate 83. If the Testator in his last Will doth give 100 l. to the Church without other description thereof and had but one Parish Church it shall be intended of that if he dwelt in that Parish If he gave it to St. Stephens Church in such a City by Name and none there found so called it shall be due to the Cathedral If having two Parish Churches one where he made his Will the other where he dyed shall say I give 100 l. to my Parish Church without other Distinction it shall be due to the Parish Church where he dyed if he dyed an Inhabitant thereof and would there be Buryed Otherwise not say some of the DD. but they are not clear in that Point Being also much divided in their opinion to which Church the Legacy is due when the Testator having at the same time as well when the Testament was made as when he dyed Two Parish Churches his House and Habitation in each dwelling alike indifferently in each a reputed Parishioner to each doth Bequeath the said Sum of 100 l. to his Parish Church To find out the Testators Intention in a Bequest so Circumstantiated the DD. raise their Conjectures either from the consideration of the Testators choice of the Place for his Enterment as which of these two Parish Churches he desired to be Buryed in or from the consideration of his most frequent converse as which of these two Parishes he was personally most conversant in or from the consideration of his Affection to the one more than to the other and lay the greatest weight upon that where he desired to be Buryed as being a Signal of his Affection to that Parish Church more than the other and accordingly give their determination herein And in Case there be not sufficient Evidence of his Affection more to the one than to the other the Law presumes the Legacy for that Parish Church which is the poorest of the two but if that neither can sufficiently appear then and in such Case the Bishop of the Diocess may gratifie which Parish he please by Assigning it the whole Legacy or otherwise may divide it betwixt them both as he shall think fit But if the Testator himself Nominates the Church and there be several Churches of the same Name and no sufficient Evidence which he meant or intended in that Case the Law presumes he intended that Church which was the poorest of the Name 84. When a Testator gives a Legacy to a Man willing him to live with his Children the Legacy is extinguish'd upon his not living with them in Case the Legacy were given him for the Childrens sake Otherwise if it were given him for his own sake and not for theirs But if it were given him on both Respects viz. For the love the Testator bore him and that he might live with his Children in that Case the Legacy shall be good to him albeit he doth not live with them because then the favour the Law allows the Legatary and for prevention of an Extinguishment of the Legacy shall turn the Scale especially if the Testator had more than an ordinary Affection for him 85. If the Testator saith I would not have my Executor to hinder A. B. in his Legacy or in what I have Bequeathed to him The Law doth infer that A. B. shall take the Thing Bequeathed of his own proper Authority without expecting the delivery thereof to him by the Executor Which holds true albeit the usual words of Bequeathing are omitted For 86. In the constitution of a Legacy it is not necessary the Testator should in terminis say I Give Leave Will Devise or Bequeath it is sufficient if he saith I would have A. B. to have such a Thing or let my Executor suffer him to have it or let him see that A. B. have such a Thing or any other words of like import 87. He that hath the Letters of Administration cum Testamento annexo is as far forth obliged to pay the Legacies in such Will contained as if the Will it self had been legally proved 88. If the Legatary be a person capable of a Legacy at the Time of the Testators death it is sufficient albeit he were not so at the time when the Testament was made 89. If a Testator Bequeath 100. Bushels of Corn out of his Ground there is such a Tacite Condition in that Legacy that if the Ground produce it not the first Year the Legatary may expect it the next and so on successively till the Legacy be compleat 90. A Testator saith I give my Physick Books to my Son if hereafter he shall study Physick but if he make the Law his Profession then let him have my Law Books After the Son Studies both Law and Physick in that Case he shall have the Testators Books of both Professions 91. A Legacy left by the Husband to the Wife so long as she shall abide and remain in his House is understood as a Legacy given her so long as she continues in her widdowed Condition 92. If the Husband gives a Legacy to his Wife in this manner viz. Item I Bequeath 100 l. to my Wife so long as she remain in my House and with my Goods for my Child till he come of Age she looseth her Legacy if in the interim she Marry again and dwell elsewhere with her second
its Integrals or defective as to its more Noble and more Principal Parts and Members as having but one Eye or but one Hand albeit the Creature hath life the Legacy hath none For although an Amplication of the natural Form in this Case doth no prejudice yet a Mutation thereof will understand not this as if it did extend to Hermophrodites For if they be not in a double Capacity as to Legacies as well as other things yet they are not excluded a single Capacity but in that Case it is provided That that Sex which most prevails with them in Nature shall likewise prevail in Law as to the Legacy Bequeathed 107. To conclude with the Pope because much of the Law that treats of this Subject if I would have travell'd that way borders on his Dominions it is Asserted or Legended which you please by a very learned Author That Nemo praeter Papam potest alterare voluntates Testatorum It is nothing strange that he who assumes a Power to dispose of Souls should alter the best faculty thereof for the Wills Society is the Creatures Felicity 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS INDEX GENERALIS OR An Alphabetical Table Comprizing all the Material Points of Chiefest Remarque in this Testamentary Abridgment with Reference to each Page and Paragraph A. ACceptance of Executorship in what Cases Compellable by Law p. 91. § 2. Accessorie Advantages to a Legatary between the time of making the Testament and the Testators death p. 291 292. § 19. Accompt Executors Obliged to Accompt with the Ordinaries power therein p. 150. § 1. Within what time they are â—o Accompt Ibid. § 2. Though it be Judicially made yet it shall not Prejudice Absent Creditors or Legataries not being duly Summoned Ibid. § 3. Whether Accompt lies against Executors for Money paid to their Testators by vertue of the Privy Seal p. 113 114. § ult It lyeth against the Executor of an Accomptant for Money received by his Testator although paid by Order frm the Lord Treasurer Ibid. It lyeth not against the Executor of an Accomptant except for the King p. 128 129. § 2. Actions Maintainable by Executors or Administrators p. 100 c. Personall Actions in the Testator are none in the Executor Ibid. § 2. p. 129. § 3. Actions Maintainable against Executors or Administrators p. 105. c. Personall Actions lie not against Executors as such p. 129. § 3. Whether Actions and Right of Actions fall under the Notion of Goods Devised or under the Notion of Moveables and Immoveables p. 306 307. § 1 2. Administration how it shall be granted p. 153. § 5. Whether it may be Granted by Word only Ibid. § 5. p. 163. § ult Whether it may be Granted Conditionally and with an Ita tamen p. 162. In what case it may be Granted notwithstanding an Executorship Ibid. It may be Granted of the Goods of a Woman Covert Intestate Ibid. Two Letters thereof may be Granted and both Good p. 69 70. § 5. What Acts amount to an Administration p. 162. § ult To take in any of the Testators or Intestates Obligations and give others in stead thereof is an Administration and alters the Property Ibid. p. 159. § ult To whom of right it belongs p. 169 c. Granted to an Executor of his own wrong will not Justifie him p. 162. § ult To whom it belongs Durante Minoritate p. 67 68. § 4. When it ceases ibid. Committed Durante Minoriaetate p. 154. § 6. Granted by the Metropolitan where there is not Bona Notabilia is voidable not void otherwise if Granted by a Bishop when it appertains to the Metropolitan p. 167. § ult In what Cases not voidable only but void also p. 159 160. § ult Granted a Caveat depending void p. 171. § 5. Adminstrations Fraudulent and Revokable p. 164 c. Whether to say granted by a Bishop a good Plea without shewing that he was Loci illius Ordinarius And whether so of a Dean or Arch-Deacon p. 155 159 160 161 c. § ult To say Granted by A. W. LL Dr. no good Plea because not shewed to be Bishop or Ordinary p. 161. Administration Durante Minori aetate ceaseth at the Age of 17 Years p. 67. § 2. Administrator What he is in Law p. 151. § 1. His Origination Ibid. § 2. What in a Notion distinct from Executors p. 151. After an Executors death how the Law in that case provides p. 152. § 3. Administrator of an Intestate Executor may not meddle with the first Testators Goods p. 69. § 4. He is an Assigne in Law as well as an Executor p. 161. § ult In what case Acts done by a former Administrator are good notwithstanding Letters of Administration after Granted to another p. 165 166. § 4. In Plea he must shew not only who Granted his Letters of Administration but also that he had Legal power so to do p. 158 159. § ult What sales or disposals of Goods an Administrator may make Durante Minoritate of the Executor p. 156. Administrator pendente Lite of a Citation to Repeal sells Goods good for he hath Lawfull power to Dispose c. Otherwise in an Appeal p. 166. § 5. In what Case an Administrator only in pretence shall be no Legatary in reality p. 318 319. § 26. Advowson in Fee how Devisable p. 288. § 5. Advowson in Gross not Devisable p. 225. § 2. Whether an Advowson may be Assetts p. 122. § 8. Age At what Age Minors may be Devisors p. 205. § 1. Age Superannuated into Dotage Intestable p. 13. § 4. Alien not Denison whether he may be an Administrator p. 170. § 4. Alien Administrator though Enemy may Sue p. 103. § ult Alien not Denizon intestable as to Lands p. 226. § 3. Alienations Prohibited to Devisees with the difference between necessary and voluntary Alienations p. 298. § 48. A Tripartite Case in Point of Alienations prohibited by the Testator p. 248 249. § 49. All How that word is to be understood p. 311. § 14. Anabaptists by the Civil and Canon Law Incapable of being Legataries p. 207. § 2. Animus Testandi Necessary in every Testator in making a Will or Devise p. 2. § 2. p. 202. § 2. Annuity when payable if no fix'd time be set by the Testator p. 306. § 20. p. 439. § 3. p. 444. § 78. Apostates Intestable p. 21. § 4. Incapable of a Legacy p. 206. § 2. Appellation of things ought not to be besides the Testators Intention p. 294. § 29. Appurtenances by that word shall pass Lands commonly used with a Messuage Devised p. 272. § 6. They are not where the one is Freehold the other Coppyhold p. 235. § ult Arbitrament made in writing against a Testator doth not charge his Executor p. 108. § 6. p. 110. § ult Debt thereupon against an Administrator not good p. 109. § ult Assent of an Executor necessary to the having of a Legacy p. 162. § ult Assent to