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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A51777 [An appendix to the office and duty of an executor.] Manley, Thomas, 1628-1690. 1676 (1676) Wing M442; ESTC R204050 25,140 71

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of the Heir For the fourth Testator by the word immoveable-Goods pass all natural fruits as Grass growing Fruit on Trees Fish in a Pond Pidgeons in a Dove-Coat c. Goods moveable and immoveable are given as a Legacy it hath been much disputed if Debts and Obligations pass and it is agreed that they do and also Rents and Arrearages thereof behind but such a Legatary of moveable and immoveable Goods cannot sue for such Rent Arrear or Debt in his own Name for the Executor must recover them and then may he sue the Executor in the Ecclesiastical Court for the same and if the Executor refuse to sue the parties the Ordinary shall compel the Executor to give one or more Letter or Letters of Attorney to the Legatary to sue for the same in the Executor 's name but to the use of the Legatary himself A. gives all his Housholdstuff to B. by this B. shall have Tables Stools Forms Chairs Carpets Hangings Beds Bedding Basons Ewers Candlesticks all sorts of Vessels serving for Meat Drink being either of Earth Wood Glass Brass or Pewter Pots Pans Spits Kettles and such like But Books Weapons Tools for Artificers Cattle Victuals Corn in a Barn Carts Plough-gear and Vessels fixed to the Free-hold are not so esteemed Plate used in the House as Cups Bowls Candlesticks c. are Houshold-stuff but such as are kept only for shew or Ornament being no otherwise used shall not be reckoned as Housholdstuff unless the Testator's meaning appear in plain words otherwise If after a Testator 's Death there be found two Wills the one made in favour of his Children the other in favour of Strangers that to the Children shall be confirmed But if one Testament be proved and the Executor possessed of the Goods it is not afterwards to be disproved or he dispossessed by means of another Will of the same date There are two Testaments one to Children another ad pios usus both of one date that to the Children shall have the priority A Legacy is given of all his Debts no more will pass than those Debts then due not such as grow due after the Will made So if a Testator releases to A. all his debts such as grow due after the release made shall not be discharged The like of Apparel Books Housholdstuff c. But in these and all Cases the mind of the Testator must be respected A Testament begun though not finished is good so far as it is proceeded in A draught of a Will not acknowledged by the Testator is no more a Will than a draught of an Obligation is an Obligation unsealed A Testament found written with the Testator 's hand in a Chest amongst other Writings of account shall be good if the same be dated and perfect The last Testament is best and doth abrogate and annull all former although the Executor refuse or dye before or after the Testator But if the latter Testament be imperfect or the Testator compelled by fear or fraud to make it it is void A Testament made 10 years Before death is nevertheless good whatever after may happen But a Testament is presumed to be revoked when the Testator and Executor become great Enemies Also when the Testator in heat of Anger conceived against his Son or such as should have Administration and afterwards they are reconciled A Testator after a Will made is attainted of Treason Felony Heresie or Apostacy c. unless he obtain a pardon or be otherwise restored the Will is naught If an Executor cannot or will not prove a Will it loses the name of a Testament and must be affixed to an Administration yet the Legacies are still due An Executor must be capable at three several times 1. At the making of the Will. 2. At the death of the Testator 3. At the time of Probate thereof But in conditional Testaments the Executor and Legatary being capable at the time of the condition to be performed is sufficient Ademption of Legacies A Ship was given for a Legacy which was afterward so repaired that little yet some of the old remained that makes the Legacy good so of a house repaired after a Will made but if the old house be wholly pulled down and new builded of other stuff afterwards this makes the Legacy void so if blown down or fired by chance and new built or if the Testator after the Will made sell or give away the same this takes away the Legacy A Testator gives an Obligation to A. and after this the Obligor payes the Testator the Debt in ademption but if the Testator constrain him to pay by course of Law there the Legacy is extinguish'd Transferring of Legacies From one to another as a Legacy is given to A. provided if A. will not do such an Act to be void to him and B. to have it A. dyes yea before he can do it here the Legacy is not transferred A Testator gives 100 l. to A. upon condition he pay for 10 years 10 s. a year to the poor of c. and after he gives the same 100 l. to B. without any condition yet B. must perform the first condition Lands are given by Will viz. in the beginning of the Will to A. in Fee in the latter end to B. in Fee this is to be decided by the Temporal Law whereby B. is to have it because it is the latter devise ratio partis ad partem ut totius ad totiem If Legatary become Enemy to the Teltator or give him a secret cause of hatred though unknown to the Testator by which it may be supposed that if he had know it he would have taken away or destroyed the Legacy this will make the Legacy void If a Wife depart from her Husband without consent or a Legatary accuse his Testator of a capital crime or become a capital enemy to the Testator's Brother or if the Legatary neglected to help him in sickness through want whereof the Testator perished or grievously defamed or slandered the Testator any of these will cause him to lose his Legacy A Legacy of 100 l. is given to A. to be paid him at Easter 1675. A. dyes before Easter yet his Executor or Administrator shall recover because it was due at the death of the Testator But if 100 l. be given to A. when she shall be married and she dye before marriage the Legacy is lost But if it be given for and towards her marriage and she dye before yet her Executor or Administrator shall recover it Debt is brought against the Ordinary who pending the Writ commits Administration to J. S. the first Writ shall abate because the Ordinary is compellable to grant the Administration by the Stat. Bro. Tit. Administ 39.31 E. 3. cap. 11. Rast Administrators 1. and 21 H. 8. cap. 5. Rast Probate of Testam 3. Where the Ordinary commits Administration he may revoke it and grant it to another but all acts done by the first Administrator shall be good and so it was held in the case between Brown and Shelton for the Goods of Rawlins where the Administration was committed to Brown and revoked and committed to Shelton because it was not an interest but a power or authority only which may be revoked but the contrary is held of an interest certain Bro. Administrator 33. in fine If an Executor plead fully Administred in an Action of Debt and give in Evidence payment of Legacies The Plaintiff in the Action of Debt may demurr in Law thereupon because such Administration is not allowable in Law before Debts are paid Bro. Tit. Assets inter maines 10. An Executor before Probate makes his Executor and dyes his Executor shall have Administration 3 Eliz. Dyer 372. Isted's Case Where an Executor hath the residuum give him there Administration shall be granted to his Executor but where the residuum is not so given the next of Kin shall have it Li●●le●on's Case ●th Report I shall only add what hath very Learnedly been held by a most Worthy and Honourable Person and of profound reading in the Law concerning the Ecclesiastical Court viz. That it had not Original Jurisdiction and that what Jurisdiction the Church claims was given to it by the King and that is proved by four principal reasons 1. That the Ordinary had not any power to dispose bona peritura 9 Elizab. Dyer 255. 5 Rep. Needham's Case 2. If a Debt were due to the Testator or intestate the Ordinary had not power to recover it nor could he commit it Co. 2. Inst 398. F. N. B. fo 91 92. 3. It is a Lay thing and some at this day have power to dispose who are meerly Lay. Co. 5.16 5 Rep. fo 65. B. 4. For the manner of Tryal it must be in the Temporal Court. 13 Eliz. Dyer 294. Much more might be said in this point which for the greatest part being mentioned in the fore-going Book We will here set up at present our rest FINIS
on such condition upon the first refusal the Executor or Legatary will have a right Condition is he or she marry according to the appointment arbitrement or consent of A. the condition is unlawful but the Legacy is good though the marriage be without such consent Condition is that thou marry not a Widow or this or that particular Woman is good and if thou perform it not no Executorship or Legacy shall pass because thou hast liberty besides A Legacy is given upon condition that thou marry the Testator 's Daughter thou must not marry first another Woman and afterwards her for it is a condition affirmative and intended to be meant of first marriage and so the Legacy is void But in negative conditions as if thou do not marry the Testator 's Daughter here if thou marry two or three and her at the last yet the Legacy is good for here not the first Act alone but all subsequent Acts are regarded A Condition in respect of place is good As that one shall not marry at York for he is at liberty to marry elsewhere Land is given to a Man and the Heirs of his body on condition he nor his sell by Feoffment c. Here if he or his Heirs sell the Donor or his Heirs may enter for this is in favour of others and herein the Common Law and the Ecclesiastical agree Prohibition in a Will to sell a Cup Ornament Gift of a Prince Prize got in War c. is good unless the Goods will not amount to pay Debts or if it be so far from him that he cannot have profit or use of it he may sell it or if he be the last to whom it is limited One by his Will giveth A. the residue of his Goods and makes him Executor on condition he do not sell the same A. must enter into Bond not to sell before he can be admitted Executor which Note As to time when conditions are to be performed when no certainty thereof is expressed it must be done as soon as with conveniency it may after the Testator 's Death A. makes B. Executor on condition that he give 10 l. to the Poor he may do it at any time in his life but the Ordinary may appoint the time and if he fail may grant Administration But a Legacy given on condition that he give 10 l. to the Poor he must do it as soon as he is able after his Testator 's Death or else he will lose his Legacy There are also casual Conditions as if a Ship come from Venice thou must attend and if it come in thy Life good but if thou dye before thy Executor cannot have it though it return after thy death Condition is if such a one dye without issue this is much to be taken notice of for a Bastard shall not be deemed issue though the Parents inter-marry after the birth and such are issue natural not lawful nor may they inherit But if A. have issue by B. his Wife this is lawful not natural so if one marry a Woman with child by another albeit born the next day yet the Husband must be Father For whose is the Cow his is the Calf If a Wife cohabit with an Adulterer yet if it be possible that the Husband may come to her the Husband shall be presumed the Father nay though the Wife own the Adulterer and the Child be like him for that might happen by the Mothers conceit at Conception so Jacob's rods Ethiopian picture c. but if the Husband were not at the time of Conception within the four Seas or far distant or imprisoned it will be judged otherwise Also if disabled by Nature or old Age. In no case such Children shall inherit If a child be born alive and heard cry the Father by the courtesy of England shall have the Land for his Life otherwise if it were an absolute abortion Remedy for Creditors and Legataries during the suspence of the Condition For they are due presently therefore it is provided by the Statute of 21 H. 8. and 32 E. 3. that Administration be granted to the Executor for so long time as the condition depends If a Condition be delayed to be performed by an Executor it being in his power it is his fault and he shall be excluded An Action against an Administrator shall abate if there be an Executor which will prove a Will after the Administration granted The Ordinary may appoint a time to every Executor at the petition of Creditors to prove the Will and if he refuse Administration may be granted unto such as have interest until the condition be extant or he may grant a Letter ad tollendum bona defuncti but upon such letter an Action will lye against the Ordinary as it might have done against the Administrator yea though such one sell bona peritura he may be sued as Executor in his own wrong Ten pound a year given to one by a Testator till his Son attain 21 years of Age is good till he should attain though he dye in the mean time If the Executorship be only limited and the time of Age not joyned to the substance as I give to A. 100 l. and I Will the same be payed when he comes to 21 years of Age and he dye in the mean time yet the Executor or Administrator shall recover it And Executor may be particular as of his Goods c. in York-shire or Universal as of all his Goods the particular Executor is only chargeable so far as he Administers and cannot meddle with the rest But if one make A. an Universal Legatary or give him the rest of his Goods and make no other Executor he shall be deemed Executor at least Administration may be granted to him Two are made Executors one dieth his Executor may not joyn with the first Executor in the execution of the Will and if such Executor of Executor have any of the Testator 's Goods the first Executor may have an Action for them and if the surviving Executor dye intestate yet the Executor of the Executor cannot meddle Also if one Executor be a Babe or beyond Sea the other is admittable in the mean time If all or one Executor refuse to undertake the Executorship the other may sue or be sued But first there must be summons and severance but if the refusing Executor afterwards become willing he may joyn with the Executor and be admitted and if he release a debt due to the Testator it is good so it be released before judgement One releases a debt due to A. and aftrr takes Administration of the Goods of A. the release is void for that there was no right of Action at the time when it was executed Two or more Executors are named all refuse but A. and he proves the Will and after maketh B. his Executor and dyes the rest who refused may not joyn with B. but he may sue or be sued alone for the first Testator 's Goods Bro.