years to his Executors for the payment of his Debts this shall be assets in the Executors hands but if a man Devise his Lands to be sold for the payment of his Debts it is no assets till it be sold unless he express it to be so in his Will Pasc 9 Jac. C. B. Brownl 1 part Rep. fol. 34. Hil. 10 Jac. C. B. Brownl 2 part fol. 47. 298. If a man make a Lease for years of a House c. reserving Rent and the Executors after the Testators death receives the Rent yet it is no assets in their hands for the whole Rent belongs to the Heir 20 El Dyer fol. 362. Plo. com fol. 114 and 259. 299. If an Executor or Administrator make gain of the Testators Money that gain shall be assets in his hands Brownlowes 1 part Rep. fol. 77. 300. If an Executor pay Funeral-expences or Debts of the Testators with his own Money he may retain goods of the Testators to the same value and they shall not charge him as assets in his hands Cleydon and Spencers ca. Mores Rep. fol. pl. 3. Hernes Law Con. pag. 88. Noyes Max. pag. 104. Swin part 6. sect 16. Dyer fol. 2. and fol. 187. 301. Note where it is said before pl. 284. that an Action lies against an Executor upon his promise to pay a Debt of the Testators yet there ought to be a good consideration to ground the Assumpsit upon which must be either an advantage to the Executor or a damage to the Creditor as forbearance till such a time c. or else the Action will not hold M. 2 Jac. B. R. Fisher and Richardsons case Cr. 2 part Rep. fol. 47. P. 10 Jac. B. R. Booth and Cromptonâ— case Cro. 2 part fol. 613. and H. 16. Jac. Bogge and Melins case Huttons Rep. fol. 27. 302. If Judgment be given against Executors and upon a fieri facias the Sheriff returns Nulla bona in such case the plaintiff may have another special Writ of fieri facias directed to the Sheriff that he levy the Debt of the Testators goods and if it appear to him that the Executors have wasted the goods then that he levy the same of the Executors own proper goods H. 45 El. B. Râ— Pettisers case Co. 5 lib. Rep fol. 32. and Tr. 16 Car. 1. B. R. King and Hiltons case Cr. 1 part Rep. fol. 438. 303. A man was bound in an Obligation with condition for the performance of Covenants and dyes after whose death his Executors break Covenants and the Bond being sued it was moved that Execution might be of the Executors own goods because the breach of the Condition was the Executors own Act. But the Court denied it and Judgement was entred debonis Testatoris Tr. 17 Jac. C. 〈◊〉 Rott 1849. Castilion and Exec. of Smiths case Hobarts Rep. fol. 283. 304. If an Executor or Administrator be sued for a Debt of the Testators and he knoweth of a Judgment or other Debt upon Record against the Testator if the Executor have no more goods then will satisfie the same then he may well plead this special matter and it shall bar the party that sues for it shall be taken for a plâ—ne Administravit and if the Executor should pay the party that sues before the Judgment it will be a Devastavit and he will be forced then to pay the Judgment out of his own proper goods as is shewed before pl. 292. Hil. 7 Ed. 6. Dyer fol. 79. P. 12 Jac. C. B. Moon and Andrewes ca. Hobart Rep. fol. 133. Tr. 15 Jac. C. B. Rot. 2119. Kydd and Chynelyes case Hobarts Rep. fol. 218. Scarles case in Mores Abr. p. 191. pl. 877. and Barracloughs c. Clayt Rep. 65. pl. 112. 305. If an Executor be not minded to take upon him the Office of Executor then it behooves him not to meddle with any of the Testators Goods for if he once Administer of the Goods of the deceased and make use of them by selling the Goods or killing any of the Cattle or if he pay any of the Testators Debts or receive any Debts due to the Testator and give Acquittances for the same with other like acts in such Case he shall be said to Administer as Executor and may be compelled to stand to the Executorship Hil. 8 Jac. C. B. in Wickenden and Thomas case Brownlowes 2 part Rep. fol. 58. Bro. Ex. 49. Fitz. Exec. 38. Stokes and Porters ca. Mores Rep. fol. Noys Max. p. 102. Tr. 13 Eliz. C. B. Hawkins and Laws ca. Leon. Rep. fol. 155. Swin part 6. sect 22. Porters case Dyer fol. 166. 306. If a Stranger who is neither Executor nor Administrator enter upon the Goods as aforesaid this shall charge him as Executor of his own wrong and he may be sued by the Creditors of the person deceased but after the Will is proved or Administration granted and they have intermeddled with the Goods then the Stranger cannot be sued because there is another Executor of right against whom the Creditor may bring his Action and is chargeable as far as those Goods will extend which are come to his hands after he hath assumed upon him the charge of the Executorship but notwithstanding all this that there be an Executor which doth Administer yeâ— if the Stranger will still take the Goods and claim to be Executor and pay Debts or Legacies or receive Debts in such case it is said he may be charged as Executor in his own wrong although there be another Executor of right Quia os suuâ— contra se aperuit nam expressa nocent quae tacita non nocent 2 Jaâ— C. B. Reads case Co. 5 li. fol. 33 34. Swin part 6. sect 22. M. 3 Car. â— Whitmore and Porters case Cro. 1 part Rep. fol. Vide â—r 12 Jac. C. B. Rott 4087. Keeble and Osbastons case Hobarts Rep. fol. 49. And Chandler and Thompsons case 262. Bro. 2 part Rep. fol. 185. 307. Note that an Executor of his own wrong is chargeable no further then the value of the Goods which come to his hands and with which he hath intermedled Brownlowes 2 part Rep. fol. 185. Mich. 23 Car. 1. B. R. Styles Repracticale pag. 120. 308. If a man do onely perform deeds of Charity as to feed the Cattle of the deceased lest they should perish or take into his custody the Goods lest they should be stoln or dispose of the Goods about the Funeral of the Testator these acts do not charge a man as Executor of his own wrong Frane Mantica de conject ult Volunt li. 12. tit 9. num 18. Fitz. Exec. num 38 45. Bro. Admin num 6 28. Swin part 6. sect 22. Brownlowes Rep. 2 part fol. 184. Hil. 1 El. C. B. Dyer fol. 166. Noyes Max. pag. 102. 309. Where servants after the death of their Lords or Masters do imbezil their Goods after full infortion thereof made to the Lord Chancellor by the Executors or two of them of such spoil made the said Lord Chancellor by advice of
this case J. S. before the Stat. of the 17. Car. 2. could not sue out Execution upon such Recovery but was to begin a new because he comes in paramount to the Executor and claims immediately from the first Testator but see now the late Act made at Oxford 17 Car. 2. for avoyding of unnecessary suits and delays it stands on continuance for five years and from thence to the end of the next Session of Parliament Co. 5 lib. fol. 9. in Brudenels ca. Cro. 2 part Yare and Goughs ca. 1 Jac. B. R. and M. 4. Car. 1. B. R. Snape and Norgateâ— ca. Cro. 3 part and Mores Rep. Levet and Lewkners case but see now the Statute at Oxford 17 Car. 2. for avoyding unnecessary suits and delays 373. If an Administrator during Minority of an Infant-Executor recover in Debt and the Executor comes to age before Execution taken out in such case he may sue out a special Scire facias upon the Record and so sue out Execution in his own name Vide 27 H. 8. fol. 7. a. Brownlows Rep. 2 part pag. 83 84. 374. An Administrator is not lyable to an Action for a Debt upon a Contract of the Intestates Mich. 30 31 El. B. R. Hughsons and Webbs ca. Cro. 1 part 375. But if the Administrator after the Intestates death promise to pay such a Debt if there be a consideration to ground the Action on it is binding As thus the Husband was indebted to another man upon a Contract for Beer and dyed Intestate the wife took administration and afterwards assumed upon her self to the Creditor that if he would deliver her six Barrels of Beer she would not only pay for them but her Husbands Debt also in this case it was adjudged that Judgment should be â—â—â—â—ed de bonis propriis generally for it is become a Charge by her own act and by her promise as Administratrix â—he hath made it her own Debt Tr. 37 El. B. R. in Wheeler and Colliers case Cro. 1 part Rep. 376. A Rent was granted to the Husband and Wife for their Lives the Rent is behind and the Husband dyes and then another Rent becomes in arrear and the Wife dyes Intestaâ—e and the Administrator brought an account of debt for both Rents in arrear as well in the Husbands life-time as in the Wives and adjudged the Action did well lye Mich. 42 43 El. B. R. Temple and Temples case Cro. 1 part Rep. fol. 377. If Administration of the debtors goods be committed to the Creditor it doth not extinguish the debt but if the Creditor make the debtor his Executor it is a Release in Law of the debt but if a VVoman-Executrix take the debtor to Husband this is no release of the debt for if he dye she may sue his Executors for the debt was but suspended during the Coverture M. â—1 El. B. R. Crosman and Reads case Leonards Rep. fol. 320. Co. 8 li. fol. 135. in Sir Jo. Needhams case and Mich. 1652. B. R. Rott 686. Ashby and Childs case Styles Rep. fol. 384. 378. Where an Infant is made Executor and Administration is committed durante minori aetate and the Administrator hath goods in his hands to a great value and the Infant at his full age releases to the Administrator all demands this release shall be charged as asseâ—s in the Infants â—ands for so much as he released â—o the Administrator Mich. 15 El. â—wens Rep. fol. 3. and M. 37 El. C. B. â—ittleyes case â—odbolts Rep. fol. 29. â—nd 30. 379. An Administrator may bring an Action of Trespass or Trover and Conversion for goods taken away before he obtained the Administration for the Letters of Administration shall relate to the time of the Intestates death and not to the time of granting them M. 1652. B. R. â—â—â—ge and Hebbs case Styles Rep. fol. 〈◊〉 M. 3 Car. 1. B. R. Hudson and Hudsons case Latches Rep. 214. 36 H. 〈◊〉 7. Fynches Law li. 1. â— 5. 380. An Administrator may retain Money in his own hands to satisfie his own Debt in prejudice of other like Creditors of the Intestates aswel as an Executor may do M. 11 Jac. Bond and Greens case Godbolts Rep. fol. 216. Tr. 13 Jac. Rot. 1906. C. B. Waynford and Wayners ca. Brownlows Rep. 1 part pag. 80. 381. An Administration may be granted upon Condition and if the Condition be not performed it may be revoked or repealed but then iâ— the Administrator before the Condition broken give away the goods or selâ— them such acts are good Co. 6 lib. fol. 19. 382. Note If the Testators words be indifferent to make an Executor or universal Legatary a Testament or a Codicil in such case it is usual to commit the Administration to the Widow or next of Kin deeming the party to have dyed intestate Franc. Manticade conject ult volunt lib. 2. Tit. 3. num 12. Swin part 4. sect 4. num 8. 383. Note That the Ordinary may call the Administrator to account but he cannot force him to make disposition of the surplusage of the Intestates goods after Debts payd by the true meaning of the 21 H. 8. C. 5. but what remains shall go to the Administrator in case there be any more Debts to pay which as yet are not come to his knowledge and if the Ordinary will meddle to cause a disposition to be made a Prohibition will be granted against him if the Administrator request it M. 6 Car. 1. B. R. Levans case Cro. 3 part Rep. fol. M. 15 Jac. C. B. Tooker and Loans Ca. Hobbarts Rep. fol. 190 Pasc 24 Car. 1. B. R. Hill and Birds case Styles Rep. fol. Brownlowes 1 part Rep. pa. 32. And Vide Slawneys case Hob. barts Rep. fol. 83. 384. An Administrator accompted before the Ordinary and proved payment by one VVitness and because the Ordinary would not allow of proof by one VVitness but did excommunicate the party for want of proof a Prohibition was thereupon granted and the Book says there that the jurisdiction of the Spiritual Court is not taken away by the Prohibition but their proceedings only P. 2 Car. B. R. Bellamy and Aldens ca. Latches Rep. fol. 117. 385. Now as touching the Interest of the Ordinary in the goods of the Intestate that comes to his hands note that it is only such an interest as an Administrator durante minori aetate Executoris hath and therefore he cannot give nor sell the Goods of the Intestate or do any thing to his prejudice M. 9 El. Dyer fol. 256. Co. 2 part Inst. fol. 398. 386. And so if the Ordinary make a Letter to one Ad colligendum bona Defuncti ad vendendum ea quae peritura essent inde Compatum reddere In this case if the Grantee sell the Goods he may be charged as Executor of his own wrong for the Ordinary himself having not power to sell cannot give more power then he hath Swin part 4. sect 16. in fine M. 9 El. Dyer fol. 256. 387. If no
reason of incertainty because it is a Testament ad pias causas By the Poor therefore is understood the Poor of the Parish where the Testator did dwell and keep house and the Ordinary is to take care that the Poor have their due according to the meaning of the Testator Also if the Testator bequeath any goods or money to the Parishioners of any Parish to the use of the Church such a Bequest is good and the Legacie may be recovered by the Churchwardens who albeit in every respect they be not a lawful Corporation yet in this respect in favour of the Church they are accounted a lawful Corporation And where it is said that unlawful Colledges or Companies c. not Incorporated by the Kings Authority cannot be Executors yet in such case if the several and particular persons by name of an unlawful Colledge c. be appointed Executors they are not to be repelled Franc. Mantica deconject ult Volunt li. 8. tit 5. num 2. â—iraquel tract de privileg piae causae privileg 56. Lambert Tract de Officio Gardianarum fo 43. Bro. tit Corporation num 55 73 77 84. Fulb. li. 1. fo 42 43. Swin part 7. sect 8. 100. If the Testator make his own kin his Executors in this case those of kin who are nearest to him and should have had the Administration if the Testator had died Intestate shall be first admitted and enjoy the Executorship during their lives and after their deaths then the other next of kin to the Testator is to be admitted successively one after another and not all together but if the Testator make another mans kindred his Executors in such case they are all to be admitted together to the Executorship Simo. de Praetis de interp ult Volunt li 3. fo 91. num 28. Mich. Grass thesaur com opin sect Instit quaest 20. sect Fidei commiss quaestio 16. sect Legat. quaest 41. Swin part 7. sect 8. num 10. 101. Where the Testator makes the next of his kin his Executor and dies without issue of his body in this case the father or mother if living shall have the Executorship as next of kin to their son contrary to the Judgement given in the 5 E. 6. in the Duke of Sussolk's Case which Case is now over-ruled and not held for Law Co. 3. lib. fo 40. in Ratcliff s Case there Cowels Inst p. 40. Trin. 22 Car. 1. B. R. Styles Regestum practicale p. 21. Swin part 7. sect 8. in fine 102. If the Testator say I make A or B my Executors in this case it is all one as if he had said I make A and B my Executors unless it be where the Testator bears more affection to the one then to the other and then he which he bears most affection to shall be preferred as where the Testator makes his brother or John at Style his Executors in this case the brother shall be first admitted and after his death then John at Style if he be living shall be admitted Also where one of the persons so named is incapable then the dis-junctive standeth properly and the other shall be admitted alone to the Executorship Jul. Clar. sect Testament quaest 80. num 5. Swin part 7. sect 9. 103. An Excommunicate person so long as he standeth in the Sentence of Excommunication is not to be admitted to an Executorship by the Ordinary nor can he commence any Suit there for his Legacie Michael Grass thesaur com opin sect Institutio quaestio 4. Swin part 5. sect 6. 104. Bastards begotten and born in Adultery or Incest are not capable of any benefit by the Testament or Last Will of their Incestuous or Adulterous parents except there be onely so much bequeathed as will suffice for their competent Alimentation or Relief that is to say for their Food Clothing Lodging and other meet and convenient necessaries according to the degree and ability of their parents or that it be in case of Lands Tenements and Hereditaments for there a man may by his Testament or Will in writing devise to his Bastard all his Lands Tenements or â—ereditaments and such Bastard may sue for the same and recover them and so it was adjudged in the Lady Griffins Case upon the Testament of Sir Francis Wortly who devised all his Lands to his base daughter Mich. 18 Car. 2. B. R. Mich. Gâ—â—ss thesaur com opin sect Instit quaest 7. Gabr. com Conclus li. 6. tit de Aliment conclusio 1. num 5 31. Menoch praesump li. 4. praesumptio 157. num 3. 32 H. 8. c. 1. Brac. li. 2. c. 7. Swin part 2. sect 17. part 5. sect 7. 105. Note also that these incestuous or Adulterous Bastards may be Executor to any other person saving to their natural parents and are capable of a Legacie bequeathed to them from any other person yea even to their own Incestuous or Adulterous brethren they may be Executors or receive any other Testamentary benefit from them Jul. Clar. sect Testament quaestio 31. num 4. Swin part 5. sect 7. 106. Also where they are appointed but onely bare and nude Executors and receive no benefit by the Testament in such case they be admitted Executors to their own natural parents Simoâ— de Praetiâ— de interp ult Voluntâ— li. 5. fo 17. num 27. Swin part 5. sect 7. 107. The Adulterous Grandfather may bequeath any thing to the lawful children of his own unlawful sons or daughters or make them his Executors but so cannot the Incestuous Grandfather Covar in D. cap. 8. de Sponsal part 2. sect 5. num 13. Bald. C. de Incest Swin part 5. sect 7. 108. Several other persons there are who by the Civil and Ecclesiastical Laws are prohibited Testamentary benefits but being that I finde little or no mention made of them either in our Common or Statute-Laws which limit the power of those Spiritual Courts here in England I shall therefore pass them over in silence and proceed to the next Chapter CHAP. V. Of the several ways of appointing aâ— Executor 109. TO name or to appoint one as Executor is to place one in stead of the Testator who may enter to the Testators goods and chattels and have an Action against the Testators Debtors and may dispose of the same goods and chattels towards the payment of the Testators Debts and performance of his Will which if he neglect to do he may be sued by the Creditors or Legataries so long as he hath Assetts in his hands Noys Max. p. 101. Terms of the Law verb. Executor Swin 4. sect 2. 110. Now this naming or appointing an Executor is the head of the Testament and as the body is dead that lacketh an head so the Testament is as it were dead that lacketh an Executor for it is the foundation of the Testament and no Testament can stand without it or be called a Testament and though there be never so many Legacies or Devises given therein yet it is but a Codicil or Will and not
have an Action of Debt against his Executors or Administrators for such Arrearages The Husband also who is seized in right of his Wife of any Estate in Fee-simple Fee-tayl Fee-farm where any such Rents are behind in the Wives life whether it be before or after Marriage and unpaid at the time of her death may have the like remedy and so may his Executors or Administrators Co. on Lit. fol. 351. b. 32 H. 8. cap. 37. Swin part 6. sect 3 num 8. Pasc 23 Eliz. Dyer fol. 375. 271. Actions of Account were given to Executors by the Stat. of Westmin 2. and Actions of Trespass done â—o their Testator as for his goods and Chattels carried away were given by â—he 4 E. 3. 7. and by the 25 E. 3. Exeâ—utors of Executors have Actions of Debt Account and of goods carried way of the first Testators and Excution of Statute-Merchants and Reâ—ognizances made to him and are â—lso lyable to the Actions of those to â—hom the first Testator was indebted â—o far as the goods of the first Testaâ—or will extend but the Goods which â—id belong to the first Testator shall â—ot be put in Execution for the Debt â—f the second Testator Wingate Abr. Stat. Tit. Executors Co. 2 part Inst fol. 404. Finch pag 173. Noyes Max. pag. 102. Westm 2. c. 23. 25 E. 3. c. 5. 4 E. 3. c. 7. Swin part 6. sect 3. Plo. Com. fol. 286 287. 272. Note that one Executor cannot sue another for the possession of the Testators goods for the possession of one is as the possession of both and therefore one of them hath no remedy against the other but in Chancery unless there be a Legacy lefâ— unto one of them in particular and then he may sue for that Swin part 4. sect 20. num 14. Bro. Exec. 98 104. F. N. B. Exec. 32. Plo. Co. fol. 343. Swin part 6. sect 3. num 20 Tothils Rep. pag. 8. 273. If an Infant be made Executor Administration durante minorâ—aetate may be committed to the Mother or other Friend of the Infant which shall cease and be void wheâ— the Infant comes to the age of seventeen yeers 41 42 El. C. B. Prince case Co. 5 lib. fol. 29. Noyes Max. pag. 105. 274. But this Administrator during such Minority cannot sell or Alienate any of the Goods of the deceased unless it be upon necessity as for the payment of the deceaseds Debts or that the goods would otherwise perish for he hath his Office of Administrator Pro bono commodo Infantis and not for his prejudice and cannot pay Legacies unless there be assetts to pay debts neither can he let a Lease for a longer time then whilest the Executor shall be under age Noyes Max. pag. 106. Co. 5 li. Rep. fol. 29. 275. If a man make two Executors one of seventeen years of age and the other under in this Case Administration during the Minority of the other is void because he of seventeen years of age may execute the Will and therefore if such Administrator should bring any Action the Executor of seventeen years of age may well release the Debt Piggot and Glascoignes ca. Brownl 1 part Rep. fol. 46. 276. And if a Woman under the age of seventeen years be made Executrix and the Adminstration is committed duranteminori aetate and then she takes an Husband of full age in such case the Administration shall cease Co. 5 li. Rep. fol. 29. 277. An Infant-Executor upon payment or satisfaction to him of any of the Testators Debts may give a discharge for the same and it is a good bar against him afterwards but if he should give a release without payment or satisfaction in such Case he is not barred from the recovery thereof afterwards by such release 28 El. B. R. Russels ca. Co. 5 li. fol. 27. Tr. 13 Car. 1. B. R. Kniverton and Lathams ca. Cro. 1 part Rep. fol. 352 353. Noyes Max. pag. 106. 278. If a woman during the Coverture be named Executrix she alone can neither sue nor be sued without her Husband but she alone may do any extrajudicial act as the paying of Debts or Legacies or the receiving or releasing of any Debts due to the Testator and so may her Husband alone without her though she alone be Executrix which acts of his shall not onely binde her during Marriage but after also if she out-live him Co. 5 li. fol. 27. F. N. B. Exec. 23 30. Bro. eod tit num 147 151 152 178. Kellowayes Rep. fol. 127. num 74. Swin part 5. sect 1. part 6. sect 3. num 17. 279. An Executor may release an Action before Probat although that before Probat of the Will he may not have an Action but if B release and after take Administration that shall not bar him for the right of Action was not in him at the time of the release as it was in the Executor 1 Jac. C. B. Middletons case Co. 5 li. fol. 28. Perkins sect 482. Tr. 7 H. 4. 8. Glan li. 7. cap. 7. Fleta li. 2. cap. 27. Co. on Litt. fol. 292. b. 18 H. 6 23. Hernes Law of Con. pag. 86. Cowels Inst pag. 119. 280. If an Executor take in the Testators Bond from one of the Creditors and gives his own Bond for the Money or if the Testators Creditor be indebted to the Executor in so much as the Testator was indebted and the Executor releases to him in both these Cases it is a good Administration by the Executor and they shall not be charged as assets in his hands although in the first Case he get a longer day of payment Pasc 30 El. C. B. Stampe and Hutchings case Leonards Rep. 111 〈◊〉 See Bryers and Goddards case 〈◊〉 Rep. fol. 250. And Arlush and â—â—â—lisons case Claytons Rep. pa. 88. 〈◊〉 48. 281. But if the Executor plead â—ully Administred and give in evidence Bonds cancelled and taken in or Acquittances for Money this will not serve unless there be proof of real payments made upon such Bonds and Acquittances or of new security given Lent-Assize 24 Car. 1. apud Ebor. Scotts case Claytons Rep. pag. 112 pl. 193. 282. If there be divers Executors and they are all sued and one of them onely pleads yet Judgement shall be against them all but the costs shall be against him which pleads if the other do confess or suffer judgement to go by default Brownl 〈…〉 pag. 274. 17 E. 3 45. b. And 〈…〉 Jac. C. Banc. Lawry and Aldrod◠〈…〉 Brownl 2 part Rep. fol. 183 〈…〉 186 187. 283. If an Executor 〈…〉 one of the Testators 〈…〉 he plead fully Administred 〈…〉 Jury finds assets in his hands 〈…〉 they be but to a small value yâ—◠〈◊〉 shall be condemned in the whole debt because of his false plea. M. 4 Jac. B. R. Mary Shiplyes ca. Co. 8 li. fol. 134. Clerk of the Assize pag. 65. 284. If the Executor promise to pay a Debt of the Testators this shall binde him though he have not assets Summer
Assize 16 Car. 1. â—pud Ebor. Smiths ca. Claytons Rep. pag. 85. pl. 141. 285. An Executor is not chargeable with a collateral promise made by the Testator unless there were a breach of it in the Testators life-time M. 1649. Christopher and Howes case Styles Rep. fol. 141. And Pasâ— 1650. B. R. Styles Regest Practicale pag. 121. 286 If the Creditor make his Debtor his Executor in this Case the Debtor proving the Will the Debt is thereby extinguished or if the Creditor make his Debtor and another Executors here though the Debtor dye before he Administer as Executor the other Executor who was not indebted surviving yet in this Case the surviving Executor shall not have an Action for the same Debt against the Executor of his Co-executor for that the Action was extinguished by constituting him Executor Actio semel extincta nunquam reviviscit Quaere Bro. Testam 118. Plo. com fol. 184. Cowels Inst pag. 207. But see M. 31 Eliz. in B. R. Crosman and Reads case to the contrary Leonards Rep fol. 320. 287. Also if two be bound in a Bond to one in a certain sum of money and the Obligee makes one of the Obligors his Executor this is said to be a Release in Law of the Bond and Debt for the Action is suspended and a personal Action once suspended is thereby extinct Hil. 11 Jac. C. B. Fryer and Gildridge ca. Hob. Rep. fol. 10. 288. If a Debtor makes his Creditor and another Executors the Creditor if he not prove the Will nor administer may have an Action against him that doth prove the Will for his Debt and then afterwards he may Administer and take the Executorship upon him when he pleases but if he take it upon him before he sue for his Debt his Action will be thereby extinguished 289. If the Executor by the Will be to pay money and no place is appointed the parties in this case to whom it is to be paid must make Request to the Executor to pay it for the Executor in such case is not bound to seek the parties all over England as it is in the case of a Bond where no place of payment is appointed Brownl 1 part Rep. fol. 46. 290. If one be bound in an Obligation with Condition to pay twenty pounds to such person as the Obligeâ— shall name and appoint by his last Will and Testament and the Obligee afterwards makes his Will and nominates none to whom the twenty pounds shall be paid in this case the Executor named in the Testament may sue and recover the money M. 11 Jac. C. B. Rott 945. Pease and Stilman against Mead. Brownlo 1 part Rep. fol. 77. 291. As to the payment of Debts by the Executor he must have a care to pay them according to these following rules otherwise it may be he shall be forced to pay some of the Testators Debts out of his own proper goods if there be not sufficient goods of the Testators to pay all the Debts therefore observe what follows 292. First Funeral-expences then Debts to the Kings Majesty then Judgments must be payd after them Statutes-Merchant and Recognizances then Obligations and if there be divers Obligations he may pay which of them he pleases first unless the day of payment in one Obligation be past and the day of payment in the other Obligation not come for then that is to be paid first where the day of payment is past or unless one Obligation be put in suit and the other not for then that in suit must be first payd and if there be two Obligations put in suit by two Creditors a-against the Executor then he which first gets Judgment must first be paid and in this case the Executor if he will may suffer Judgment in that which was last put in suit and so pay him off first then after these Obligations simple Bills are to be payd then Rents in arrear by the Testator then Servants and Head-Workmens Wages then Merchants Books and lastly Contracts by word in which the Testator could not wage his Law upon which the Executor may be sued in an Action upon the Case upon the promise of the Testator Bro. Exec. 172. Dr. and Stud. Li. 2. C. 10. Dyer fol. 32. Mag. Charta C. 18. Co. 2 part Inst fol. 32. Cowels Inst pag. 150 151. Herns Law con pag. 87. Noyeâ— Max. pag. 104. Co. 3 part Inst fol. 202. Swin part 6. sect 16. See M. 3â— El. C. B. Pemberton and Barhams case and 43 El. B. R. Bearblock and Reads ca. vouched in the Sadlers case Co. 4 lib. and Harrisons case 40 El. C. B. Co. 5 lib. fol. 28. Terms of the Law ver Executor Bro. Exer. 33 87 127 163. Mich. 9 Jac. C B. Puncheon and Legatos case Brown 2 part Rep. fol 137. and Co. 9. lib. fol. 86. the same case M. 42. 43 El. B. R. Littleton and Hebbens Ca. Cro. 1 part Rep. fol. 293. The Executor is not chargeable for a Trespass done by the Testator nor for his receit for Rents nor for occupation of Lands as Bayliff or Guardian in Soccage for this is no duty certain Noys Max. pag. 103. 294. If Executors or Administrators have not Assets in their hands to pay all the Creditors according to these former Rules then they must pay in order as far as the Goods and Chattels of the Testator will extend and the rest are without remedy but if they pay Debts to others before Debts to the King or Bonds before Judgments or Shop-Books before Bonds c. then they must pay the same over again if there be not sufficient left to pay them who ought to have been paid according to the same order and were omitted Hernes Law Conv. pag. 87. 295. If the Testator were indebted to the Executor he may allow his own Debt before he pay other Creditors to whom the Testator was indebted in the like manner as he was to the Executor be it by Statute Bond or otherwise in case he have made an Inventary and that he be not Executor of his own wrong for every Creditor by such means when the Goods be not sufficient to pay all would strive to make himself Executor of his own wrong to satisfie himself and bar others an Administrator also may stop his own Debt Plo. com in Woodward and Darcyes case M. 40. 41 El. B. R. Coulters case Co. 5 li. fol. 30. Ma. 6 Jac. C. B. Alexander and Lambs case Brown 1 part Rep. fol. 103. Swin part 6. sect 16. Plo. com fol. 184. 296. If the Testator be indebted to one in forty pounds and the Executor pays but twenty pounds and gets an Acquittance for the whole forty pounds yet this Acquittance shall not prejudice any other Creditor but for twenty pounds onely and the other twenty pounds shall be assets in the Executors hands still 8 Jac. C. B. Turners ca. Co. 8 li. fol. 132. Bro. Exec. 6. Swin part 6. sect 16. 297. If a man Devise his Lands for three