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
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
or legally representing their Stocks pro suo cuique jure according to the Lawes in such Cases and in manner and form following That is to say one third part of the said Surplusage to the Wife of the Intestate and all the residue by equal Portions to and amongst the Children of such persons dying Intestate and such persons as legally represent such Children in case any of the said Children be then dead other than such Child or Children not being Heir at Law who shall have any Estate by the settlement of the Intestate or shall be advanced by the Intestate in his life-time by Portion or Portions equal to the share which shall by such distribution be allotted to the other Children to whom such distribution is to be made c. And the Heir at Law notwithstanding any Land that he shall have by descent or otherwise from the Intestate is to have an equal part in the distribution with the rest of the Children c. And in case there be no Children nor any Legal Representatives of them then one Moity of the said Estate to be allotted to the Wife of the Intestate the residue of the said Estate to be distributed equally to every of the next of Kindred of the Intestate who are in equal degree and those who legally represent them Provided that there be no Representations admitted among Collaterals after Brothers and Sisters Children And in case there be no Wife then all the said Estate to be distributed equally to and amongst the Children c. And no such distribution to be made till after one year after the Intestates death nor without sufficient security to be given by those to whom such distribution shall be made for refunding back to the Administrator according to each ones ratable proportion in case of the Intestates Debts afterwards sued for and recovered or otherwise duly made to appear For other Provisoes Rules and Limitations in the said late Act of Parliament the Reader is referred to the Statute it self there more at large Note An Administration cannot be revoked for the not bringing in of the Inventory and the Account of the Administrator And the Ordinary upon an Administration granted had not before the said Statute power to make any distribution of the Surplusage nor to take any Bond for to Answer the Surplusage by the true meaning of the Statute of 21 H. 8. which intends a benefit to the Administrator and not an unprofitable burden The Ordinary hath not power to make distribution of the Goods because there may be a Debt which was unknown and if he might distribute then the Administrator should be charged with the debt of his own Goods Vid. Briersley's Case Brown 1 Part. 31. acc Whether this were Law then is a needless question it being otherwise now by the Statute aforesaid CHAP. XXXIII Of Right to Administration 1. What the Method of Succession is by the Laws of this Realm 2. How the Civil Law understands it 3. The difference between the words Kindred and Consanguinity between Cognatos and Agnatos 4. Whether an Alien no Denizon may be an Administrator 5. Administration granted a Caveat depending is void in Law 1. BY the Law both by the Statute Lawes the Common Law and by the Civil Law the nearest of Kin to the deceased Intestate is to succeed in the Administration of his Goods As first to the Husband or Wife but if they fail then secondly to the Children whether Male or Female but if they fail then thirdly to the Parents whether Father or Mother but if they fail then fourthly to the Brothers or Sisters of the whole blood but if they fail then fifthly to the Brothers or Sisters of the half blood but if they fail then sixthly to the next of Kin as Uncles Aunts c. From these the Ordinary cannot grant the Administration to a Stranger if they seasonably require it and are not otherwise affected by some legal impediment but he may grant it to which of these he please if divers of them in equal degree do desire it yea to a Stranger if they neglect it 2. The Civil Law as to the Intestates Estate whether Real or Personal considers it all under the same Notion yea in this case it makes no distinction either of Ages or Sexes but all that are concern'd may challenge an equal proportion provided they be of equal degree and of identity in blood whether of the whole or of the half blood But the Wife was otherwise provided for by the Civil Law Therefore exempted from a Succession to the Goods of her Intestate Husband There are but Three Orders or Degrees chiefly of Kindred which the Civil Law doth specially take notice of The first is in the Right Line Descendent as Children Grand-Children and so downwards The Second is in the Right Line Ascendent as Parents Grand-Parents and so upwards The Third is in the Line Transversal or Collateral as Uncles Aunts Great-Uncles and so side-wards alwayes remembring that the whole blood is more worthy than the half blood and the nigher Degree more worthy than that which is more remote 3. Consanguineus or Consanguinity and Agnatus properly so called and strictly so taken doth comprehend only them that be of Kin by the Fathers Side Therefore the word Kin or Kindred is of a greater Latitude than Consanguinity because it comprizeth Cognatos as well as Agnatos and so comprehends all the Relations of both Lines both Male and Female for Cognati properly understood signifie only such as are the Mother-Side and of the Female Line And here Note that the most remote Agnati or Kindred of the Line Male in a Right Line Descendent are preferred before the nighest Kindred of the Female Line but it is otherwise in a Transversal or Collateral Line But as to Land in Fee or of Inheritance the Right thereof quasi ponderosum ever descends Downwards in a Right or Transversal Line and never doth Re-ascend the same way that it Descended by the Ancestors death yet it may Ascend à Latere or Sideward for want of Right Heirs in the Descendent Line which often happens 4. Suppose an Alien born and not made Denizon happen to dye Intestate within this Realm having Kindred born beyond Sea and others though more Remote born in this Realm In this Case an Alien may 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 And he may be an Administrator as well as a person Out-Lawed or Attainted may be an Executor and no Prohibition will lye in this Case 5. An Administratrix Sued the Defendant in the Court of Chancery the Defendant shewed That before Administration was committed to the Plaintiff he had put in a Caveat in the Ecclesiastical Court hanging which Caveat the Plaintiff obtained Letters of Administration of which he demanded Judgement pendant the Appeal It is a good Cause to stay the Sute until the Appeal shall be determined In this Case it was also said That the same was not like unto a Writ of Errour for by the purchasing of a Writ of Errour the Judgement is not impeached until the Record be Reversed But
him a Legacy upon condition that he marry with the consent and according to the good liking or appointment of some other person this condition is unlawful Insomuch that if such Executor or Legatary marry contrary to such restraint or condition he shall notwithstanding be admitted to the Executorship and receive the Legacy as if no such Condition had been expressed 2. Notwithstanding what hath been said the Condition holds good if the Testator make one his Executor or give him a Legacy if he marry not without the Counsel or Advice of another person so that the Testator giving him a Legacy if he marry with the Counsel or Advice of another person he is excluded from the Legacy if he marry without such Counsel or Advice yet in this case he is not bound to follow such counsel or advice but only to request the same Again although the condition of marrying with the consent of another is void so as the party on whom such condition is imposed may obtain the Legacy without such consent yet marry he must or he cannot obtain the Legacy for although the condition of such Consent be unlawful yet must he marry before he can pretend to the Legacy because that part of the Condition is not unlawful CHAP. XVI Of the manner of Proceeding during the suspence of the Conditions 1. The Condition depending Administration may be committed to the Conditional Executor 2. The Law what in case the Condition be not performable by the Executor on whom it is imposed 1. THat Creditors and Legataries may have Remedy during the suspence of the Condition of the Executorship or Legacy it is lawful for the Judge to commit Administration to him that is conditionally assigned Executor yet only for so long time as the Condition dependeth and is not extant or else deficient and when the Condition is extant he may Prove the Will and detain the Goods of the deceased as Executor to the Will but if the Condition be infringed or utterly deficient then ought he to make restitution to the next of Kin to the deceased or to those to whom belong the Administration of his Goods for by breach or defect of the Condition the deceased is reputed to have died intestate or as if he had never made an Executor And the former Administration being forfeited a new may be committed But if the Conditional Executor will not meddle with the Administration of the deceased's Goods when the Condition is performable then may the Judge assign the Conditional Executor a competent time for the accomplishment of the Condition within which time if it be not performed by him and if it be within his power it may be imputed for infringed or deficient Provided that other time for the performance of the Condition be not assigned in the Condition it self And in case of such infringement or deficiency Administration may be committed according to the Statute as of one dying intestate But if the Judge knowing of this Will doth commit Administration to some other without the Executors knowledge or without appointing him some competent time for the accomplishment of the Condition then is the Administrator in hazzard of being sued by the Executor in an Action of Trespass unless the Executor did formerly refuse 2. If the Condition be such as that it doth not lie in the power of the Executor to perform the same then may the Judge at the Petition of the Creditors assign a time to such conditional Executor to undertake the Administration of the Goods which if he neglect or refuse then may the Judge after such time elapsed commit the Administration to such as have Interest untill such time as the Condition be either extant or deficient or else as some think the Judge may grant a Letter ad Colligendum to some other person than the conditional Executor But then Note that such person as hath such Letter ad Colligendum not being Administrator the Actions which otherwise might be brought against the Administrator may now lie against the Judge And though the Judge may grant his Letter ad Colligendum yet he hath not power to give Authority to sell any of the said Goods though perishable And if such person to whom such Letter ad Colligendum is granted should by vertue of such Power sell any of such the said Goods he is suable as Executor to his own wrong CHAP. XVII Of Testaments void 1. By what means Testaments are void Originally 2. By what means they become void afterwards 3. Law-Cases pertinent to this matter 1. A Testament may be Originally void or voidable wholly or in part through some original defect as thus First because the Testator is such a person as cannot make a Testament Secondly because the things bequeathed are not deviseable by Will Thirdly because the manner of the disposition is unlawful Fourthly because the person made Executor is uncapable thereof Fifthly because the Testator was compelled by fear or circumvented by fraud or overcome by immoderate flattery or induced by some other unlawful means to make his Will Sixthly because of errour uncertainty or imperfection Seventhly because the Testator had not Animum Testandi 2. A Testament though free from all Original fault may yet afterwards become void As first by making of a later Testament Secondly by cancelling or revoking that which is made Thirdly by some alteration of the state of the Testator Fourthly by forbidding or hindering the Testator from making another Testament or from correcting the former Fifthly by unwillingness or inability of him that is appointed Executor when he will not or cannot officiate as Executor Sixthly when the Executor cannot be certainly known there being divers men of that name and no distinction made this uncertainty of the Executor maketh void the Will Seventhly when the Testator doth err in the person of the Executor but in an errour of the Name only and not of the Person it is otherwise save in certain Cases hereafter limited Thus a Testament though free from all Original fault may yet afterwards become void but a Testament originally void can never afterwards be made good 3. Errour upon a Judgment given against the Plaintiff in C. B. on a Formedon in Remainder upon special Verdict and found that D. gave instructions for the writing of his Will to give his Lands to one of his Sons for life and the Scrivener by mistake wrote an Estate in Fee and the Court agreed that the Will was utterly void because it was not the Will of the Testator Yet it seem'd to Fenner Justice that for so much as it may be it should be that is for an Estate for life which was his Will but all the other Justices were against him In the Court of Wards between the Co-heirs of Sir William Rider it was declared by Coke Chief Justice of
Executors Age of Seventeen years and that Administration committed after that Age of the Executor is meerly void and notwithstanding this averment here the Executor might be above the age of Seventeen years and within the age of Twenty one years It was therefore adjudged Quod Quaerens nihil caperet c. 5. Co. 29. Trespass upon a special Verdict the Case was Jackson Lessee for years by several Leases of divers Lands some of them in the Diocess of York some in another Peculiar in the same Diocess devised all these Leases to his Son and made his Daughter within Age his Executrix the Mother takes Administration durante minori aetate of the Executrix in F. the Peculiar where the Testator died ad Commodum proficuum Executricis the Administratrix granted this Term durante minori aetate of the Executrix to the Plaintiff Whether the Grant were good or not was the principal Question The Court resolved that it was not good For such an Administrator hath but a special property ad proficuum Executoris but not a general property as another Executor or Administrator hath and therefore his sale of Goods unless they be Bona peritura or it be for necessity for the payment of debts which he is chargeable to pay it shall not bind But he may sue and be sued and yet his Authority is but a limited Authority and therefore like as if Letters ad Colligendum bona Defuncti were granted to one there he may sell bona peritura as Fruit or the like 2. It was moved whether the Assent of an Administrator durante minori aetate to the devise of a Term or the Assent of the Executor himself during his minority to such a Devise be good Anderson said That an Executor at the Age of Eighteen years may Assent but whether the Assent by such an Administrator be good or not they doubted 3. It was moved whether Administration should in this case be granted at Two places viz. the one within the Peculiar the other by the Arch-Bishop of York Ordinary of the Diocess or whether he should have the Prerogative in both as he had where Bona Notabilia were in divers Diocesses And it was resolved That there should be two Letters of Administration granted for the Arch-Bishop shall not have any Prerogative here because this Peculiar was first derived out of his Jurisdiction wherefore c. 5. Co. 29. Errour of a Judgement in Debt in C. B. The Errour assigned was because the Plaintiff sues by an Atturney where he was an Infant and ought to sue by Guardian But because the Action was brought by him as Administrator so that he sued in auter droit Infancy is no impediment unto him no more than Out-lawrie and therefore he might well sue by Atturney and it was thereupon adjudged for the Defendant that the first Judgement should be affirmed Note that if an Infant sue and not as Executor he must then sue by his Guardian vid. Case Bartholomew vers Dighton Hill 37 Eliz. B. R. in Cro. Rep. part 1. Pl. 22. Debt upon an Obligation made to the Testator The Defendant Pleaded a Release made by one of the Plaintiffs The Plaintiff replyes That this Release was made without any consideration and he who Released was within Age at the time of the Release made and it was thereupon demurred and adjudged for the Plaintiff that it was a void Release being by an Infant without consideration In the Case between A. and M. as Administratrix of J. during the minority of L. It was among other things Objected That the Plaintiffs Declaration was not good because it is brought against her as Administratrix durante minori aetate of L. And it is not averr'd that the said L. was yet within the age of Seventeen years sed non allocatur for true it is that if one brings an Action and entitles himself as Administrator durante minori aetate of one such he ought to shew that he is yet within the Age of Seventeen years as Co. 5. fol. 59. Pigots Case For that he is to take Conuzance how long his Authority shall continue and he ought to shew it to enable himself to the Action But when he brings the Action against one as Administrator durante minori aetate there such Plea need not be shewn for so long as the other continues his medling he shall be sued and the Plaintiffs need not take Conuzance of the age of the other as c. And here if her Authority were determined it should be shewn on the Defendants part therefore the Judgement was affirmed Note it was resolved by all the Justices of England That the Release of a Debt or a Duty by an Infant Executor after Probate made of the Will is not good because it should be a Devastavit and charge the Infant of his own Goods and also it should be a wrong which an Infant by his Release cannot do and also because it is not pursuant to the Office of an Executor Infant Executor Administration was committed durante minori aetate debt was brought against the Administrator and then the Infant came of full age and the Justices very much doubted whether the Action did abate A Guardian Recovered a debt on an Obligation made to an Infant the Defendant paid the Principal and Costs and prayed that the Guardian might be ordered to acknowledge satisfaction The Court said That a Guardian or an Infant or Executor may not acknowledge satisfaction for more than they receive and for so much they ordered the Guardian to acknowledge satisfaction And made an Order that no Execution should issue for the residue If an Administration be repealed from one and granted to another which was only durante minori aetate and that other bring the first Administrator to account and after give him a Release yet the Infant at his full age may compell the first Administrator to account to him again and the former account to such second Administrator shall not Bar him for such Administrators Release is not good unless for some such cause as for which it ought to be made It was by the Chief Justice of the Queens Bench demanded of the other Justices there Assembled upon hearing of Causes If one make an Infant his Executor that Releases a Debt due to him as Executor without receiving the summ due which receipt if it be good will be a Devastavit by the Infant of the Goods in his hands whether such Release shall bind the Infant or not It was agreed by them all That such Release is void for an Infant by his own Laches and Folly shall not prejudice himself Yet a Feme Covert Executrix may receive money without her Husband which was due to her Testator and give an Acquittance for the same and if she gives an Acquittance for debt which causes a Devastavit the Release shall be good and the Wife and Husband bound thereby the reason is
Debt out of the Testators and not the Executors Goods which is conceived a more reasonable way than to charge the Executors for that they bear the burthen of the Administration of the deceaseds Will they deserve to have as much favour as Reason will admit and not be charged of their own proper Goods It was further said That if an Executor should be lyable to such Judgement of his own Goods it would be a cause of often refusing the Administration of Testaments for it is a thing of ill consequence to bind Executors in their own proper Goods in any other Cases than have been in fore-time adjudged which Cases were cited out of divers Books but here omitted for brevities sake none of which Cases have any resemblance with this in question Debt was brought against an Executor the Plaintiff Declared upon a simple Contract To which the Defendant pleaded Fully Administred It was found against him and moved in Arrest of Judgement for that the Action was against an Executor who is not chargeable in that manner and it was said That when it doth appear to the Court that the Executor is not chargeable the Court ought not then to Judge for the Plaintiff and to this purpose some Books were cited and it was said That the Reason why an Executor shall not be charged upon a simple Contract is for that he is a Stranger and cannot have notice of the Contract and therefore the Law will not have him to be charged for that alone without somewhat else But in this Case it appears that he had notice of the Contract inasmuch as thereupon he pleaded fully Administred and that Plea being admitted it implyes as if he had known of the Contract and therefore when he pleaded that he had fully Administred which was found against him Judgement ought to have been given for the Plaintiff for proof whereof a Judgment was cited which appears to have been given An. 10 H. 6. fol. 15. and 13 H. 6. As the Book sayes in the like Case against an Executor upon a simple Contract All which notwithstanding it was resolved by the Court That the Plaintiff should take nothing by his Writ giving their Reasons for such their Judgement which for brevities sake are also here omitted Debt against an Administrator upon an Arbitrement made betwixt the Plaintiff and the Intestate in Writing and the Defendant demurr'd thereupon and without argument it was adjudged for the Defendant because the Intestate might have waged his Law But otherwise it were if it had been in debt upon Arrerages of Accounts before Auditors Assumpsit against an Executor upon the Promise of the Testator and in the Declaration it was not averred That he had Assets to pay debts c. But Mich. 29 30 Eliz. It was adjudged that the Declaration was good and the Plaintiff recovered Debt against an Executor upon an Obligation made by his Testator the Plaintiff was Non-suited the Defendant had Costs by order of the Court. Otherwise it is where an Executor is Plaintiff and is Non-suited For it cannot be intended that it was conceived upon malice by him Vid. Stat. 23 H. 8. cap. 15. Debt against an Executor upon an Arbitrement made in the time of the Testator It was demurred in Law whether it lay or not Because the Testator might have waged his Law And adjudged without Argument that it lay not Debt against P. as Executor The Plaintiff had Judgement to recover de Bonis Testatoris And thereupon a Scire Facias was awarded and the Sheriff returned Quod nulla habuit bona Testatoris And the Plaintiff surmiseth that he had wasted the Testators Goods whereupon he prayeth a Scire Facias why he should not have Execution de bonis propriis And ruled by the Court That this Writ shall not be awarded upon the surmise of the party upon a devastation nor in any Case where the Judgement is de bonis propriis unless it be upon return of the Sheriff where he returns a Devastavit Vid. 9 H. 6. 9. 57. Fitzh Execution 9. Scire Facias against an Administratrix to have Execution of a Judgement against the Intestate the Defendant pleaded Quod nulla habet bona quae fuerunt Intestati tempore mortis suae in manibus suis Administranda nec habuit die impetrationis brevis nec unquam postea And it was thereupon demurred and held by all the Court that it was not any Plea for a Judgement cannot be answered without another Judgement and it may be she had Administred all the Goods in paying debts upon Specialties which is not any Administration to bar the Plaintiff Or as some said it may be she had paid Debts upon a Statute or Recognizance which is not allowable against a Judgement But Anderson denied it for there is not any Priority of Debts upon Record unless in Case of the Queens Debt which is first to be paid And here the Defendant ought to have pleaded specially how she had Administred Wherefore it was adjudged for the Plaintiff The Defendant pleaded Out-lawry in the Testator 29 Eliz. not reversed and it was thereupon demurred Herne for the Plaintiff moved That it was not any Plea because admitting it to be a Plea it should be in regard of the Testators being Out-lawed he could not have any Goods but what appertained to the Queen and then the Executors might not have any Goods to satisfie But that is not so for the Testator might have a debt due to him upon a Contract which is not forfeited or it might be the Testator Devised Lands to be sold and which are sold the money is Assets in their hands and in 3 H. 6. 17 32. it was holden to be no Plea And of that Opinion were Walmesley and Owen For a person Out-lawed may well make a Will and have Executors over and besides the Goods forfeited to the Queen as in the Cases before put and others of the same nature But Beamond è contra for the Bar is good to a common intent and these kind of Assets shall not be intended unless they be shewn Wherefore primâ facie the Plea is good Anderson absente Adjournatur Afterwards for defect of pleading without regard to the matter in Law it was adjudged for the Plaintiff 8 Ed. 4. 6. 21 Ed. 4. 5. 39 H. 6. 27. Errour of a Judgement in C. B. against Three Executors The Errour Assigned was That one of them died pending the Writ before Judgement And Warberton moved that this was Errour but when one of the Executors Plaintiffs die this is no Errour for they might be served But the Court held it no Errour 3 H. 7. 1 3. 8 Ed. 3. 11. Scire Facias against Executors upon a Judgement against their Testator in debt They pleaded that before they had any knowledge of this Judgement they had fully Administred all the Testators Goods in paying of debts upon Obligations and it was thereupon demurred and
to all intents and purposes yet the Indenture referreth to that which did bear the name of a Will And although it was not a Will indeed it was not material A Feme Covert Executrix may without her Husbands consent make an Executor of those Goods she hath as Executrix Likewise she may make an Executor of the Things in Action due to her A Woman Covert may make a Testament if her Husband agree to it after her death And such albeit she be an Executrix cannot Devise any of the Goods she hath as Executrix without her Husbands consent or his agreement to it afterwards yet she may make an Executor thereof without his consent Likewise a Feme Covert cannot Devise things in Action which she hath without the consent and agreement of her said Husband If a Woman Covert die Intestate Administration may be committed of her Goods for possibly she had things in Action which are not given by the Law to her Husband D. 8 Eliz. 251. 90. Admitt CHAP. XI Of Persons Intestable by reason or for want of their Principal Senses HE that is both Deaf and Dumb by Nature can make no Testament or Last Will except it may appear upon good and sufficient ground that he doth understand what a Testament means and also that he hath Animum Testandi for if so then he may by plain significative tokens and signs declare his Testament But in case he be Deaf and Dumb only by accident he may if he be able write his Testament with his own hands or otherwise not being able to write yet having understanding he may as the other make his Will by signs else not at all Such as are only Deaf and not Dumb may make their Testaments Also such as are Dumb and not Deaf may write their own Testaments if they can otherwise they may make them by good and sufficient signs well known to the Witnesses then present Also a Blind man may make a Nuncupative Testament before a sufficient number of Witnesses but not a Written Testament unless the same being read to him before Witnesses he in their presence acknowledge the same for his Last Will and Testament So that the bare acknowledging thereof to be his Last Will without hearing the same read unto him is not sufficient CHAP. XII Of Persons Intestable by reason of some Criminal Convictions 1. Traytors Intestable from the time of the Crime committed 2. Felons not Intestable before Conviction 3. Hereticks Intestable till they reclaim their Heresie 4. Apostates Intestable 5. Incestuous Intestable saving to their Parents and Children 6. Sodomites are Intestable 7. Self-murderers Intestable under Limitations 8. Out-Laws and Excommunicates not absolutely Intestable 9. Outlawry in an Intestate no good Plea in Bar to a Creditors Action against his Administrator 1. TRaytors are Intestable for they lose both their Lives Lands and Goods whereof they were possessed at the time of the Treason committed or at any time after Insomuch that Traytors are Intestable not only from the time of their Conviction but also from the time of the Crime committed So that the Testament before made doth by reason of the conviction become void both in respect of Goods and also of Lands Tenements and Hereditaments Howbeit a Traytor that is pardoned and restored may make his Testament Neither shall such Goods as the Traytor hath as Executor to another be forfeited whence it follows that of such Goods he may make his Testament which also extends to persons Out-law'd for Debt also to persons attainted or convicted of Felony 2. Felons are likewise intestable being lawfully convicted for the Law hath otherwise disposed of their Lands and Goods But if a man be only Indicted of Felony and die before his Conviction or Attainder he may make his Testament both of Goods and Lands Or being Indicted and thereon Arraigned stands Mute and Dumb and will not Answer in this Case he forfeits only his Goods and therefore may make a Testament of his Lands And here Note that in respect of a Felons Lands the time of the Fact committed is to be respected but in respect of his goods the time of his Judgement So that he loseth his Lands from the time of committing the Fact but his Goods only from the time of Conviction insomuch that at any time before his Conviction he may bequeath sell or otherwise alienate his Goods and Chattels Howbeit if he make his Testament before his Condemnation it will be frustrated and prevented by his Judgement So that the Testament of a Felon convicted is void though he be never Executed void even by force of the Condemnation unless he afterwards doth obtain his pardon 3. Hereticks if they be Convicted or publickly Excommunicated cannot make a Testament of their Goods and Chattels But if they reclaim their Heresie they are not Intestable 4. Apostates or they who do wholly renounce the Christian Faith which once they did profess and do become Jews Turks or Infidels are worthily excluded by the Law from being capable of making a Last Will or Testament 5. Incestuous persons are prohibited to dispose of any Goods or Chattels by Will saving to their Children begotten in marriage that is in lawful marriage or to their Parents Brothers Sisters Unkles or Aunts Where by Parents understand all of each Sex in the right Line ascending and by Children all of each Sex in the same Line descending 6. Sodomites or such as are guilty of that wicked and abominable sin against Nature mentioned in the Holy Scripture are intestable and prohibited to bequeath their Goods or Chattels 7. Self-murderers or such as wilfully destroy themselves are intestable nor can they make any bequest of their Goods for they are all Confiscate Yet there are Those who distinguish between the kinds or rather the occasions of Self-murther viz. 1. That which is occasioned through the fear of Execution of a Judgement of Condemnation 2. That which is occasioned through a tired sense of a long tedious and irksome life 3. That which is occasioned through the pain and violence of some Disease In the first case it is said they lose like other Felons both Lands and Chattels in the second Chattels only in the third neither Lands nor Chattels 8. Out-lawed persons though out-lawed but in an Action personal forfeit all their Goods and Chattels and therefore cannot make any Testament thereof But the Out-lawed for Felony forfeiting their Lands as well as their Goods and Chattels cannot make any Testament of either Though the Out-lawed only in an Action personal may make his Testament of his Lands yet not so of his Goods and Chattels And as for Excommunicate persons if they be excommunicated for Heresie or other cause which renders them in it self legally intestable in such cause they cannot make
a Testament otherwise it is for the most part held they may 9. An Action of Debt was brought against J. S. as Administrator of J. D. The Defendant pleaded that the Intestate was Out-lawed at the Suit of J. N. after judgement and so being Out-lawed died Intestate It was resolved That the Plea was not good for it is but a Plea by Implication that he hath not any Goods and so but Argumentative And Trin. 37 Eliz. in C. B. Rott 2954. Wolley and Bradwells Case was vouched to be adjudged accordingly and therefore the Court upon the view of the Record in Wolleys Case gave judgement that in the Principal Case it was no Plea If Debt be brought against an Executor and he pleadeth that his Testator was and died Out-lawed it was holden in that case that this doth not prove a Nullity of the Will for then he might have pleaded that he was never Executor but it tends only to this that no Goods did come to his hands for satisfaction of the Testators Debt by reason of the Out-lawry A man Out-lawed to a personal Action may make Executors for he may have Debts upon Contract which are not forfeited to the King Consequently for the same reason Administration of such a mans Goods may be granted If an Exigent for Felony be awarded against a man whereby he loses all his Goods yet he may make Executors to reverse it for there he is not attainted So Administration of such a mans Goods may be also granted CHAP. XIII Of Conditional Testaments 1. When a Testament may be said to be Conditional 2. What words sufficient to express or imply a Conditon 3. The difference between Conditio and Modus 1. THe Testament may then be said to be Conditional when the Executor is therein Conditionally assigned and appointed for the assignation of the Executor is the Life and Soul of the Testament Now the assignation of the Executor is conditional when such a suspensive quality is added thereto as thereby the effect of the disposition is for the time impeded and dependeth on some future event 2. Many and divers are the words which do express or imply a condition in a Last Will or Testament whereby the Testament it self or the disposition of the Testator therein becomes conditional Such are the words following viz. if when whiles which what person who whosoever and sometimes the Ablative case absolute Also these words following viz. except unless otherwise until whensoever as much as in as much as for as much as seeing that to which end to the end that for this purpose so far as so long as also prepositions when they serve to or govern the Accusative Case as By and To yea and when they govern the Ablative Case as With if it so appears to be the Testators meaning And in a word every part of Speech whatsoever it be that suspendeth the disposition of the Testator in expectation of some future event doth either express or imply a Condition 3. Conditio is an annexed Quality which so long as it dependeth unperformed hindereth the effect of the disposition And Modus is a moderation whereby a charge or burden is imposed by the Testator in respect of some commodity which hinders not the effect of the disposition in so strict and exact a manner as Conditio doth And as Conditio is commonly known by the word if so Modus for the most part is known by the word that CHAP. XIV Of the several kinds of Conditions incident to Testaments 1. The distinction of Conditions 2. The Law of Possible Conditions 3. The Law of Arbitrary Casual and mixt Conditions 4. The Law of Affirmative and Negative Conditions 5. Conditions Impossible Unlawful and Captious are ineffectual 6. Necessary Conditions of no force in Law 1. AS many and various are the words and expressions which are as the signs and landmarks of a condition so no less manifold are the divisions and subdivisions in the Law of Conditions themselves but as to our purpose we shall content our selves with a few and reduce them all to these following viz. Conditions are either 1. Possible and they are either Casual Arbitrary or mixt which consist either in Chancing Giving or Doing and are either Affirmative or Negative Or 2 dly Impossible either in respect of Nature of Law of Persons or of Contrariety Or 3 dly Necessary and that in respect either of Fact or of Law And thus all Conditions relating to this subject may be reduced to one of these Three Heads viz. either Possible Impossible or Necessary As for Captious and Vnlawful Conditions they fall in construction of Law under the second head of this distinction 2. Possible Conditions must first be accomplished before the effect can take place unless it sticks not with nor may be imputed to the party on whom the Condition lies wherefore such Condition is not performed for in such Case the Condition will be accounted as accomplished specially if the Condition be Arbitrary and the party not in Mora nor Culpa why the same is not indeed accomplished And here Note that every Possible Condition ought to be precisely observed or performed neither is it sufficient save in some cases to accomplish the same by any other means or in any other manner than is prescribed unless it may appear that the Testator did more respect the end than the means or unless the party in whose favour such Condition was made doth consent unto other means or unless the Condition be when something is disposed in pios usus or unless the Law allows other means than the precise form which is prescribed And whereas it is true in Law what hath been said That when it doth not stand by him to whom the Condition appertaineth wherefore the Condition is not performed it ought to be for the most part accounted as accomplished though indeed and in truth it remains unaccomplished and whereas this is generally true when the Condition is meerly Arbitrary and the party to whom the Condition was injoyn'd not in fault wherefore the Condition is not accomplished so as that an impediment shall be said to excuse a man from delay in the matter of performance of Conditions yet notwithstanding all this when the impediment may be foreseen and prevented such impediment shall not excuse him who doth not avoid the same But when the impediment of performing a Condition doth proceed from the Testator himself then the Condition is reputed for compleat though not accomplished and in that case it shall prejudice neither the Executor nor the Legatary In like manner when the impediment doth proceed from a third person the Condition is to be accounted in Law for accomplished unless such third person were ignorant of the Testators Will. But when the performance of a Condition is hindered by the Will and Providence of God there the Law doth not allow any
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
29. 13 H. 4. Executors 118. Coke contra for when by his tortious Administration he hath given advantage to be sued as Executor he cannot by his own act purge this tort and cause the Plaintiff to sue him by another name but the Plaintiff hath election to sue him one way or other for he shall take no advantage by his own Tort as if one in Execution escapes and is taken away by the Gaoler he shall not have an Audita Quaerela and it will be a mischief if the Plaintiff shall be compelled to sue him as Administrator for it may be that whilst he Administred of his own wrong he wasted the goods and if he be only sued as Administrator he shall only be charged of the goods which came to his hands since Administration 12 R. 2. Administrators 21. And it was afterwards adjudged that the Writ was good and that the Defendant respondra ouster Nota if Judgement be given against an Executor upon Demurrer and Execution be awarded the Sheriff cannot return nulla habet bona Testatoris but is to return a Devastavit as if it had been found against the Executor by Verdict for per Curiam he hath charged himself by his own Plea Debt per c. vers c. as Executor he pleaded Nunques Executor c. and on special verdict found that Administration of the goods of the Testator was committed to the Wife of the Defendant who is dead and that he kept bonam partem bonorum in his hands and sold them Williams moved this Verdict was void for the uncertainty for bonam partem is altogether uncertain but it was held to be well enough for if he detain any part it makes him Executor de son tort and wherefore it was adjudged for the Plaintiff Debt against R. as Executor of T. the Defendant pleads that T. died Intestate and that certain of his goods came to the Defendants hands and afterwards Administration was committed to J. S. to whom he had delivered the said goods Et per Curiam it is not any Plea for if Administration had been committed to himself it would not have purged the first tort So here although Administration is committed to a stranger in regard that he hath once made himself chargeable to the Plaintiffs Action as being Executor de son tort c. he shall never after discharge himself by matter ex post facto Wherefore c. Adjournatur vid. 21 H. 6. 8. 9 Ed. 4. 47. 2 R. 3. 20. The Executor of A. brought Action of Debt against B. as Executor of D. upon a Bond the Defendant pleaded that D. died Intestate and that before the Writ brought Administration of his goods was committed to N. who Administred and yet doth the Plaintiff replyed That D. died Intestate and before the Administration granted divers goods of his came to the Defendants hands which the Defendant as Executor of the said D. Administred seu aliter ad suum proprium usum disposuit whereupon Issue being joyned it was found for the Plaintiff for since there was an Executor before the Administration afterwards granted the Plaintiff had cause of Action vested in him which shall not be taken away by such Administration afterwards granted though it be before the Action brought and so much the rather because the goods taken by wrong before the Administration shall not be Assets in the hands of the Administrator till they be recovered or damages for them A Woman Executrix taketh a Husband afterwards they are Divorced upon a Pre-contract the Wife Appeals to the Delegates and pendant the Appeal the Husband Administreth the goods and then dieth It was a Question whether the Husband should be said to be an Executor in his own wrong vid. 2 Jac. Co. 5. par Reads Case 33. That when a man dieth Intestate and a stranger taketh his goods and useth them or sells them he is an Executor of his own wrong for they to whom the deceased was Indebted have not any other against whom they can bring their Actions for recovery of their Debts And so note that the very seisure of goods will make one an Administrator of his own wrong Debt against G. as Executor to H. the Defendant pleads that H. the Testator was bound in a Stat. of One Hundred Pound and besides that he had not Assets and hereupon they were at Issue and a special Verdict found That the Defendant was Executor de son tort demesne and that the Testator was indebted unto him and that he retain'd divers goods to satisfie that debt due unto himself and over and above then to satisfie the Recognizance he had not in his hands c. si c. It was argued by Tanfield and Goldsmith for the Plaintiff and by Coke for the Defendant The sole point was whether an Executor de son tort may retain goods to satisfie himself And Coke moved that he well might and the Plaintiff by this Action against him hath allowed him to be rightful Executor wherefore the finding that he was Executor per tort is not material and he being allowed to be Executor may do all things as an Executor viz. pay Debts or any other Lawful Acts and as he may do it to a stranger so he may pay himself Gawdy and Fenner were of his Opinion For as he shall be charged by reason of his possession Like reason it is he should be allowed all Lawful Acts and this is here a Lawful Act as where c. Popham and Clinch è contra For an Executor de son tort shall never have any benefit by his Malefesance and c. A Precedent was cited Pasch 32. Eliz. in C. B. That an Executor de son tort might not retain to satisfie himself wherefore c. Afterwards upon another day it was moved again and the Court said They were resolved That an Executor de son tort de mesme cannot retain goods to satisfie himself his own debt And Popham said That divers of the Justices in Serjeants Inn to whom he had propounded the Case were of that Opinion and that they were resolved to enter Judgement for the Plaintiff But it was then surmised to the Court that the Defendant was dead and thereupon a stay of Judgement was prayed but the Court would not stay it upon such surmise but upon the Plaintiffs prayer Judgement was entered 5. Co. 20. Ejectione firmae for Whites Closes upon Not Guilty it appear'd upon the Evidence That a Lease for years was granted to one Okeham who died Intestate and Anne his Wife assigned it per paroll to one Burgess and after she got Letters of Administration and made an Assignment thereof to one Kenrick And the Court directed the Jury for Kenrick the last Vendee yet they agreed That if one Enter as Executor of his own wrong and sell Goods and after obtain Letters of Administration the Sale is good but in this Case there is a Term
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
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
thousand five hundred pound upon a special Verdict the Case was That W. M. had received annually out of the Exchequer Fifty pound as a Fee for his Diet for Thirty years together which was paid him by the Command of the Lord Treasurer who had Authority by Privy Seal to make allowance and payment of all Fees due but in truth these were not any due Fees And whether his Executor shall be charged with these Summs so received was the Question And after Argument it was adjudged that he should be charged for it was held That this payment of the money by the appointment of the Lord Treasurer was not allowable for the Privy Seal is not sufficient Authority to dispose of the Queens Treasure unless where it is due and he disposing of it otherwise it is out of his Authority 2. It was held That this money delivered by Authority of the Lord Treasurer who is quasi a Judicial Officer and it was quasi a Judicial Act by him yet it shall not bind the Queen for it was without his Authority and without warrant to make allowance thereof not being due and it is at his peril who receives it or demands allowance thereof For these and other Reasons mentioned in the Report it was adjudged for the Queen against the Defendant and although he were Executor he should answer for it as a debt from the Testator 11 Co. 90. b. Errour upon a Judgement given in an Assumpsit against an Executor upon a Promise of the Testators where the Plaintiff declared That the Testator in consideration of Marriage promised to pay the Plaintiff One hundred pound and for non-performance of this promise brought the Action and Judgement there given for the Plaintiff and this matter was assigned for Errour that the Action lay not against an Executor and all the Justices and Barons besides Clark Baron held it to be Erroneous for this cause For Anderson said The Reason why Debt lies not against an Executor upon a Contract of the Testators is because the Law doth not intend that he is privy thereto or can have notice thereof and he cannot gage his Law for such a debt as the Testator might and when debt will not lie it is not fit that this Action upon a bare Promise should bind him for it stands upon one Reason And if these Actions should be allowable it would be very mischievous wherefore the Judgement was reversed Q. Whether a Recovery in this Action against an Executor is allowable against a debt upon an Obligation if it should be an Administration for then it would be mischievous to Creditors and if it should not be an Administration it would then be mischievous to Executors that they should be charged therein and not have allowance thereof against other Creditors for it may be that at the time of the Recovery they did not know of other debts Note that this Term was given the like Judgement betwixt Griggs and Helhouse in an Action brought against an Administrator upon a Promise of the Intestates to pay money c. Debt against the Defendant as Administratrix of J. S. upon plene Administravit pleaded it was found by Verdict That the Testator at the time of his death had Goods to the value of One hundred pound and was bound to another by Obligation in One hundred pound and that the Defendant had taken in this Obligation and made another in her own Name with Sureties to the Obligor And upon the motion of Heale the Court held That this was an Administration and it is in the nature of a payment and so much of the Testators debt is thereby discharged and so it was said to be adjudged in Woods Case Nota fuit Ruled accordingly Pasch 30. in C. B. which was entered Mich. 28 29 Eliz. inter Stamp Hutchins Action upon the Case on Indebitatus Assumpsit doth well lye for every debt implyes a Promise and it is one good consideration in Facto whereon to found an Action But for a debt by simple Contract due by the Testator no Assumpsit lies against Executors and it was openly delivered by Popham Chief Justice No. 44 Eliz. to be the Resolution of all the Judges and to be a President in all Cases that might after happen It was agreed by Yelverton Williams and Crook Justices That if a man by Indenture lease Land to J. D. for years rendring Rent and J. D. dye making A. his Executor the Lessor may have Action of Debt against the Executor for the Rent reserved and the Arrears thereof after the death of the Lessee albeit the Executor never enter nor agree to the Lease for the Executor represents the Testators person and the Testator by the Indenture was stop'd and concluded to pay the Rent during the Term upon his own Contract and albeit the Rent exceeded the value of the profit of the Land yet the Executor cannot waive the Land but notwithstanding that shall be charg'd with the Rent Vid. Opin Ascue 21 H. 6. 24. 11 H. 4 Contr. Action Sur Trover and Conversion of Goods upon demurrer the Case was The Ordinary committed Administration of the Goods of an Intestate to the Defendant afterwards the next of Kin sues out a Citation in the Ecclesiastical Court against the Defendant to Repeal that Administration and he pendente Lite sells those Goods and afterwards his Administration is Repealed and Administration committed to the Plaintiff who for this Conversion pendente Lite brings this Action and it was moved for the Defendant that this Action lyes not for the Administration at the Common Law is well committed and the Statute doth not alter the Law in this point but gives a penalty against the Ordinary if he commits them not to the next of Kin and the Administrator till Administration Repealed hath an absolute Authority to dispose of the Goods as he pleaseth Tanfield è contra The Conversion pendente Lite in the Ecclesiastical Court is not lawful but is a Tort to the Plaintiff and that the Sentence there proves which is that all things attempted or done pendente Lite shall be void and the Justices ought to have regard to the Civil Law in this point as in 27 H. 6. Guard 118. 2 R. 2. Quare impedit 143. and 4 H. 7. 13. And by the Sentence it appears that the Administration is revoked as if it never had been and upon this reason it is in Dyer 339. where an Administrator recovered a debt and afterwards another procured himself to be joyned in the Administration and released the debt and afterwards it being revoked this release was not any bar to the execution And Mich. 25 26 Eliz. in the Common Bench between White and Cary this very point was in question and adjudged that the Action lay Gawdy The Action well lies for the Sentence doth not repeal mean Acts done by an Administrator which are for the Intestates benefit but forasmuch as these Goods were not converted
is that no Action lyeth against the Executor of him who in his life-time carried away his Corn Hay c. without setting forth the Tenth and died before recovery had against him for the same although during his life the treble value were recoverable against him in an Action of debt and this holds true though the Testator were a Lessee for years so as his State came to his Executors The Law is the same and upon the foresaid Reason and Rule in Law if a Lessee for years commit wast and die no Action lyeth against his Executor for this wast Yet the Law is otherwise against Executors of Ecclesiastical persons in case of Dilapidations for if a Parson or Vicar do suffer the buildings of his Benefice to go to decay and dies his Executors are lyable by the Spiritual Law to the Successors Sute 4. An Executor shall not be charged with nor in respect of any other Goods than those which came to his hands after his taking upon him the charge of the Executorship or by vertue thereof And although the Executor of an Executor shall answer others to whom the first Testator was indebted as much as he shall recover of the Goods of the first Testator yet if that Executor did Alienate and Convert to his own use all the Goods which did belong to the former Testator in this Case no Action doth lye against the Executor of the Executor for Recovery of any debts due by the first Testator Likewise where A. makes B. Executor and B. makes C. Executor there the Goods which came from or were left by A. be not in the hands of C. lyable unto the Judgements had against B. Nor on the other side are the Goods of B. in the hands of C. subject to the Judgements had against A. And the like is to be understood of Statutes Recognizances and Bonds Also by the Laws of this Land an Executor shall not be charged by any bequest made by his Testator of the Goods that did belong to another man Indeed by the Civil Law it is otherwise for there it is lawful for the Testator to bequeath another mans Goods which the Heir at the Civil Law must buy or pay the value thereof if the Owner will not sell them 5. If a Woman in debt marry and dye before the debt be recovered against her though leaving to her Husband much more than the value of the debt yet is he not lyable in Law to pay one penny of her debts after her decease because he neither is her Executor nor Administrator nor came to her Goods by wrong Insomuch that a Woman indebted One thousand pound and having Leases and other immoveable Goods to the value of Three or Four thousand pound marrying with A. B. and then dye before the debt be recovered against her In this Case the Husband shall have all the value of his Wifes Estate and yet in Law not be lyable for her debts during her life he is lyable but not afterwards This seems a defect in the Law whereby Creditors are at a loss without remedy therefore let them sue in her life-time for Lex fit vigilantibus non dormientibus 6. If a man be indebted and dye Intestate or if the Executors of one who hath made a Will refuse to be Executors whereby the Goods do come to the hands of the Ordinary the Creditors may have a Writ of Debt against the Ordinary by the Stat. of West 2. cap. 19. and in this case he must be sued by the name of Ordinary But after Administration committed the Ordinary shall not be sued 7. An Executor may make himself chargeable of his own proper Goods either by Omission or by Commission By Omission as when he being sued upon an Obligation or the like there being at the same time a Judgement in force against him or the deceased and hath but just enough in his hands to satisfie that Judgement yet doth not plead this in Bar of the present Action but suffers the Plaintiff to recover against him in this Case he must satisfie the second debt out of his own Estate Or by Commission as when he doth something that is a Wast in him and thereupon a Devastavit is return'd against him in which case he must answer as much as he wasted out of his own Estate or when a sute being against him he pleads such a false Plea therein as tends to the perpetual Bar of the Plaintiffs Action and yet being of a thing within his certain knowledge as when he pleads he is not Executor nor ever Administred as Executor and upon tryal of this issue it be found against him that he is a lawful Executor or Executor in his own wrong in this Case he must satisfie the debt out of his own Estate whether he hath Assets or not and the Execution had upon the Judgement shall be levied upon his own proper Goods Likewise if an Executor or Administrator sued doth plead to the Action Plenè Administravit and upon Tryal it be found against him in this Case if he have any of the deceaseds Goods left in his hands the Execution shall be of them but if he have none such then the Execution shall be and he shall be charged for so much as is found to the value thereof to be in his hands of his own proper Goods But where one is sued upon a Promise made by the Testator and he plead Non Assumpsit to it or where he is sued upon a Deed made by the Testator and he plead Non est factum to it or the like and these issues upon Tryal are found against him or when he shall confess the Action or suffer a Judgement to pass by default against him or plead any vain Plea In all these Cases he shall not be chargeable of his own Estate neither shall the Judgement and Execution in these Cases be de bonis Propriis but de bonis Testatoris only for the Debt and de bonis Propriis for the Costs And yet if an Executor or Administrator shall intreat a Creditor to forbear his debt until a day and then promise to pay him by this promise he hath made himself chargeable as for his own debt howbeit it shall be allowed him upon his account And if a debt be recovered against one who dieth before Execution sued leaving Goods sufficient to satisfie then shall not the Land descended to the Heir be charged therewith nor by like reason any Land conveyed after Judgement Or if a Creditor be made Executor by his Debtor and pay himself part out of the Goods he cannot sue the Heir for the rest because the debt cannot be apportioned but otherwise he may 8. In all Cases where a man is charged of his own Estate and the Execution be de bonis Propriis the Judgement is ever de bonis Testatoris And the method or form of proceedings in such cases is this viz. The first Execution is against
the Executor de bonis Testatoris and not de bonis Propriis And after a Devastavit return'd by the Sheriff and not before against the Executor or Administrator a new Execution is directed to the Sheriff to levy the debt de bonis Testatoris and if there be none of them to be found in his hands then to levy them de bonis Propriis Executoris vel Administratoris Therefore if an Executor or Administrator be sued by a Creditor and the Executor or Administrator plead a Plenè Administravit generally or plead specially that he hath no more but to satisfie a Judgement or the like and upon tryal this issue be found against him and that he hath in all or in part enough to satisfie the debt In these Cases the Judgement is de bonis Testatoris and thereupon an Execution is as in other cases to levy the debt de bonis Testatoris in the hands of the Executor or Administrator and the Costs de bonis Propriis And upon the Return of the Sheriff a special Execution doth issue forth to levy the money de bonis Testatoris And if it appear that he hath wasted the Goods then that he shall satisfie the Execution de bonis Propriis And hereupon also the Plaintiff may if he please have a Capias against the Body or an Elegit against the Lands of the Executor or Administrator and other course of Proceedings cannot nor may be had in this Case against the Executor or Administrator But a Sute Commenced against an Executor as Administrator or against an Administrator as Executor will prove invalid for neither the one nor the other is chargeable with the payment of Debts or Legacies in such an Erroneous Sute But where an Action of Debt was brought against Two Executors whereof the one appeared and confessed the Action the other making default thereupon Judgement was given to Recover against them both de bonis Testatoris in their hands and Execution accordingly And upon this Execution the Sheriff returned a Devastavit against that Executor only that made default and hereupon a Scire Facias went out against him alone and afterwards an Execution against him alone de bonis Propriis And in a Fieri Facias upon a Recovery against Executors the Sheriff Returning a Devastaverunt a Writ of Execution issues against the deceaseds Goods and if there were none such then against the Executors Goods 9. If one by Bond or Covenant oblige himself to pay such a summ of money at such a day not mentioning his Executors at all yet is the Executor also bound as included in the Name or Person of the Testator For if a man bindeth himself his Executors are also bound though they be not named in the Bond but so it is not of the Heir And in this respect the Executor doth more actually represent the person of the Testator than the Heir doth the person of the Ancestor So that every Bond or Covenant by the Testator made for payment of money or the like though he doth not Covenant for nor bind Himself and his Executors by express words reacheth unto his Executor also although he be not named And yet the Heir is not bound if he be not expresly named by the word Heir though there be never so great Assets or Land descended to him And although Executors do so represent their Testators persons that they stand lyable for their Debts though not mentioned in the Bonds yet where a man is bound that he will not sue upon such a Bond and dies if his Executors afterwards sue this is held to be no forfeiture of the Bond. So where one is bound to pay Ten pounds within a moneth after Request made to him and he dies before Request made it sufficeth not to make it to the Executor And although in a Judgment had against a Testator in his life-time no mention be made of his Executors yet are they lyable in that case for to debts upon Record and to debts and dammages already recovered against the Testator and to debts by recognizance the Executor is lyable though he be not named So likewise do Executors stand charged with other inferiour debts upon Record as Issues forfeited Fines imposed by Justices at Westminster or at Assizes Quarter-Sessions Commissioners of Sewers and the like 10. An Obligation made after a Contract dissolveth the Contract So that if a man do make a Contract to pay certain money for a thing bought by him if he make an Obligation for the money the Contract is discharged and he shall not have an Action of Debt upon the Contract And therefore if A. and B. do bargain with C. to pay him One hundred pound for Corn or other things and afterwards C. taketh some Writing Obligatory of A. only and then B. dieth in this Case the Executors of B. are discharged because they stood charged only by the Contract which is extinguished by the said specialty for such writing Obligatory doth determine or drown any duty by a meer Contract because Specialty is of a higher nature And although an Executor not named in the Obligation be notwithstanding bound as aforesaid supposing also that he that is named in the Testament hath in due form Proved the same yet is he not thereby lyable or obliged to satisfie the Creditors of the deceased as one that hath Administred unless also he hath paid the Fees due for the same out of the Goods of the deceased It was Adjuged that if an Executor pay a debt of his Testators with his own proper Goods he may retain as much in value of the Testators Goods And 6 Ed. 6. in debt by Shelley vers Sackvile Executor of H. Brown he pleaded Plenè Administravit and upon Evidence the Plaintiff shewed That the Defendant had a Farm belonging to the Testator in his hands to the value of Two hundred Marks the Defendant shewed how he had expended Two hundred Marks in payment of the Testators debts And the Question upon the Evidence was whether the Defendants Plea was receivable And upon Consultation with the Justices of B. R. it shall be received to maintain the Issue of Fully Administred for so much as it amounted unto because to make such a Retainer and Deduction as to alter the property is one and the same F. H. Executrix of F. brought Detinue of Goods against A. The Case was F. had made a will in writing and thereby given many Legacies and at the end of his Will gave the Residue of his Goods to F. his Wife whom he made his sole Executrix for the payment of his debts and to dispose thereof for the wealth of his Soul F. the Wife after takes H. to Husband who made A. the Defendant his Executor and died and against A. doth F. H. bring Detinue for the Goods of F. And it was adjudged for the Plaintiff because F. H. doth not here take the Residue of the Goods as a Devisee
they both live but after her death it may be otherwise yea and if a void Administration happen to be committed and the Administrator wast the Goods and then Administration be committed to another in this case the former Administrator may be charged by the Creditors for the wast done in his time 4. But for an Executor or Administrator without fraud to sell the Goods of the deceased under value especially where more cannot conveniently be made of them is no wast Nor shall one Executor or Administrator be charged for the wast done by another for where there are many joynt-Executors if only one of them doth commit the wast he alone shall suffer for it So the Executor or Administrator committing Wast in the Gift or Sale of any of the Goods of the Defunct shall answer it alone and not he to whom the Goods are so given or sold yet the Executor or Administrator of such an Executor or Administrator shall not be question'd for it after his death Also an Executor or Administrator may lawfully sell or convert the deceaseds Goods to his own use so as he convert the money thereof to the deceaseds use in payment of Debts or the like and pay so much of his own money as the Goods so converted to his use are worth and this shall not be imputed to him as a Wast Yea he may sell any special Legacy that is bequeathed and even this shall be no Wast in him though it be a wrong to the Legatee in case there be Assets to pay Debts besides But when he hath enough to pay all the Debts and Legacies then he may dispose of the whole Estate how he please without any prejudice to himself or others And note That the wasting Executor doth not incurr dammage or make his own Goods lyable for satisfaction for the Wast further than the value of the Testators Goods so wasted or mis-administred doth amount unto An Action of Debt was brought against Two Executors one appeared and confessed the Action the other made default and Judgement was given to recover de bonis Testatoris in both their hands whereupon a Scire Facias issued The Sheriff returned Nihil but he who made default had wasted the Goods upon which a Scire Feci issued against him who had wasted the Goods and upon Return of the Scire Feci Execution was awarded of his own proper Goods only without his Co-Executor 5. If the Executor confess he hath Assets supposing the Executor to be Defendant then may the Sheriff Return a Devastavit If the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Dammages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Dammages as was formerly shewn of the Executors or Administrators own Goods And if the Sheriff upon a Scire Facias Return a Devastavit then a Fieri Facias or Elegit may be sued out to levy the Debt and Dammages of the Executors or Administrators proper Goods And if the Executor plead That he never was Executor nor Administred as Executor and it be found against him that he had Administred but one penny the Judgement shall be to recover the Debt and Dammages of the Executors own Goods And in a Case of Debt brought upon a Record the Execution shall be brought where the Record remains Judgement was given against B. in a debt of One hundred pound in C. B. After the said Judgement he entered into a Statute to J. S. and died Intestate his Wife takes Letters of Administration and removes the Record of the said Debt recovered against her Husband into B. R. by Errour depending the Sute she payes the Debt due upon the Statute to J. S. Afterwards the former Judgement is affirmed On a Scire Facias against the Administratrix to have Execution she pleaded payment of the said Statute beyond which she had not Assets Upon this the Justices of the Kings Bench were divided viz. Popham and Gaudy against Fenner and Yelverton It was referred to the Opinion of the other Justices they joyned in Opinion with Fenner and Yelverton and judged it a good Plea and that the paying of the Statute was no Devastavit for at the time of the Execution of the Statute she could not plead the Judgement of C. B. it being then doubtful whether it would be affirmed or not therefore no default in the Wife-Administratrix in paying and discharging the Statute for she could not have an Audita Querela nor any other Remedy to be freed from payment of the Statute at the time of the Execution thereof CHAP. XXVII Of the Executors power in Sale of Lands devised to be sold 1. The difference between a Devise that the Executors shall sell the Land and a Devise of the Land to the Executors to be sold 2. The profits of Land Devised to be sold are not Assets in the Executors hands for a time before such Sale 3. In what Case the Heir may or may not enter upon unsold Lands devised to be sold 4. Executors accepting may without others Refusing make a good Sale of Lands devised to be sold 5. In what Case surviving Executors cannot sell Lands devised to be sold 1. WHere Land is by Will appointed to be sold neither the money raised nor the profits shall be accounted as any of the Testators Goods or Chattels And when a man deviseth that his Executors shall sell the Land there the Land in the mean time descends to the Heir and until the Sale be made the Heir may enter and take the Profits But when the Land is Devised to his Executors to be sold there the Devise taketh away the Descent and vesteth the State of the Land in the Executors and they may Enter and take the profits and make sale according to the Devise Also when a man deviseth his Land to be sold by his Executors it is all one as if he had devised his Land to his Executors to be sold because he then likewise deviseth the Land whereby he breaketh the Descent 2. If a Testator doth appoint by his Will his Executors to make sale of certain Lands for the use and behoof of the said Testator and the Lands after the Testators decease happen to remain some time unsold the Profits thereof in the said time before such sale made shall not be Assets in the Executors hands unless the Testator did devise That the mean Profits till the Sale should be Assets in their hands for otherwise they shall not be so though the Executors in this Case have no Estate or Interest in the Land but only a bare and naked Power and Authority 3. But if the Executors having power to sell the Land of the Testator defer the Sale thereof after the offer of a reasonable price converting the Profits thereof to their own use the Heir may lawfully Enter to the Land and put out the
to be paid 9. Touching Debts due for Rent upon Leases what the Law in that Case is 10. Debts for Servants wages payable before Legacies 11. Covin in an Executors payments shall not prejudice a Creditor 12. Mortuary what it is when where how much and in what Cases payable 13. Law-Cases relating to this Subject 1. ALl the Debts must be paid before any Legacies be paid or delivered and if there be not enough over and above the Legacies to pay all the debts then and in that Case any thing given by way of Legacy may be sold for payment of the Debts and in such Case the Legataries must be content to lose their Legacies 2. In the first place the Executor or the Administrator if he be a Creditor to the deceased shall be preferred before others so that he may deduct to satisfie himself first although other Creditors lose their whole debt thereby specially if his debt be in equal degree with the other debts so that an Executor may allow his own debt in prejudice of other like Creditors if he hath made an Inventory and in case he be not Executor of his own wrong Understand this especially when the debts are of equal degree for if the Testator be indebted to other men by Statute Judgement or Recognizance and to the Executor only by Bond or Specialty then may he not first pay himself unless there be Goods sufficient to pay both him and them But by the Civil and Ecclesiastical Laws the Executor is in the same case with other like Creditors 3. If there be any debt due to the Crown and the King Commence his Sute for it before any other man can get a Judgement for his debt he shall be satisfied before any others neither is it in the Election of the Executor to prefer any other debt due to any Subject So that if the Executor be Sued by any Subject for any such debt he may plead in Bar of the Sute That his Testator died thus much in debt to the King shewing how c. and that he hath not Goods surmounting the value of that debt And if the Sute be not so by way of Action as that the Executor hath a day in Court to plead but be by way of suing Execution as upon Stat. Merchant or Staple then is the Executor put to his Audita Querela wherein he must set forth this matter But this priority of payment of the Kings debt before any other is to be understood of such of the Kings debts only as are of Record and not of summs of money due to the King upon Wood-sales or Sales of his Minerals for which no Specialty is given or of Amercements in his Courts Baron or Courts of his Honours which be not Courts of Record or of Fines for Copy-hold Estates there or of mony upon the Sale of Strayes within the Kings Manors or Liberties or of forfeitures to the Crown of debts by Contract due to any Subject by Out-lawry or Attainder until Office thereupon found But of Fines and Amercements in the Kings Courts of Record there is no question but they are debts of Record 4. When the King is satisfied then must the debts of the Subject be paid if there be Goods of the deceased sufficient remaining and that in this order or method First before other personal debts whether they be due by Obligation Bill or otherwise Judgements and Condemnations are to be discharged that is the debts due by Record by any Judgement had against the deceased in any Judicial proceeding in any Court of Record Nor is it any Plea for a Creditor by Statute to say that his Statute was acknowledged before the Judgement and so is more ancient for a Judgement though latter yet being more puisne is to be preferred before a Statute in time precedent But if this Judgement be satisfied and is only kept on foot to wrong other Creditors or if there be any Defeazance of the Judgement yet in force then the Judgement will not avail to keep off other Creditors from their debts And here Note that between one Judgement and another had against the Testator precedency or priority of time is not material but he that first sueth Execution shall be preferred and before any Execution sued it is at the Election of the Executor to satisfie which Judgement he will first And here observe farther that this is to be understood of Judgements only against the Testator and not of any against the Executor himself also that what is said of a Testator in Case of an Executor immediate is to be understood likewise of the Testators Testator in Case of the Executor of an Executor Again the foresaid respect to debt by Judgement is not to be restrained or limited only to the Four Courts at Westminster but extends it self to Judgement in all other Courts of Record as in Cities and Towns Corporate having Power by Charter or Prescription to hold Plea of Debt above Forty shillings for though Execution cannot be there had of any other Goods than such as are within the Jurisdiction of that Court yet if the Record be removed into Chancery by a Certiorari and thence by Mittimus into one of the Benches then Execution may be had upon any Goods in any County of England Again Debts upon Specialties must be paid before debts upon Contract and debts upon Record must be paid before debts upon Specialties also a Judgement in a Court of Record shall be paid before Statutes which are but private Records as also before Recognizances acknowledged by Assent of the parties Likewise a debt upon or after a Recovery though it be a latter debt shall be paid before a precedent debt due by Recognizance or Statute because although they are both Records yet the Judgement in the Kings Court upon Judicial proceeding is the most notorious and more eminent in degree than a Statute or Recognizance taken in private by consent of the parties and therefore shall be preferred before it 5. In the next place Debts due by Statutes or Recognizances entered into by the deceased are to be satisfied for the debt due upon Statute Merchant and Recognizance is to be discharged if there be Assets before any Personal Debt For that by vertue of the Recognizance not only the person of the Debtor is obliged but also after the expiration of the day of payment the moveable Goods of the Debtor may be apprehended and sold for satisfaction of the debt Here Note that a Statute and Recognizance standing in equal degree it is at the Executors Election to give precedency to which he will neither is it material which of them was first or last nor between one Statute and another doth the time or antiquity give any advantage as touching the Goods though touching the Lands of the Conusor it doth but as for his Goods in the hands of the Executor who first seizeth them by
his Execution shall have the preferment and before suing of Execution the Executor may give precedency to whom he will and may if he please satisfie the Recognizance before the Statute at least if he do it before Execution sued thereupon But Executors under pretence or colour of Recognizances for the peace or good behaviour or the like or under pretence of Statutes for performing Covenants touching the enjoying of Lands not forfeited nor any summs of mony possibly ever thereupon becoming payable are not to with-hold payment of debts by Specialty and thereby defraud the Creditors so that if the Statute or Recognizance be only for performance of Covenants and no Covenant be broken an Obligation for the payment of present money shall be discharged before it Also no Judgement or Statute that is discharged or is left and suffered to lye by agreement to bar others of their debts shall bar debts upon Obligations And here Note That a Statute is a more expedite remedy than a Recognizance for upon a Statute Execution may be taken out without any Scire Facias or other Sute which cannot be in the Case of a Recognizance for there if a year be pass'd after the acknowledgement no Execution can be sued out against the party himself acknowledging it without a Scire Facias first sued out against him and if he be dead then though the year be not pass'd yet must a Scire Facias be sued 6. After Statutes and Recognizances debts due by Obligations and penal and single Bills are to be paid if there be yet Assets And if there be divers Obligations then it seemeth to be in the power of the Executor to discharge which he will first unless the day of payment in the one Obligation be expired and in the other not yet come in which Case the Obligation whereof the day of payment is expired is to be first satisfied or unless a sute be Commenced for one of the Obligations for then it is not in the Executors power in prejudice of that sute to discharge an Obligation for which no Action is brought But if Two several Creditors bring several Actions against the Executor upon Two Obligations he that first getteth Judgement must first be satisfied Yet a debt due upon Record may be paid depending the Action and although in case of several Obligations when the time of payment upon the one was come at the time of the Testators death not so upon the other and he to whom the Obligation is whose time of payment was expired at the Testators death forbear to demand or sue for his debt untill the other Obligation become also payable In this Case it is then in the Executors power to pay which he please if the Goods extend not to pay both for it is the Commencement of the Sute only which intitles to priority of payment or at least restrains the Executors election therefore an Executor may not pay a debt of equal degree to a Creditor that brings no Action for the same after another Creditor hath brought his Action But whether a bare verbal demand without a sute be sufficient to hinder the Executors payment to the other is a question but resolved in the negative Yet an Executor may make payment of any debt due by Record as by Judgement Statute c. after sute begun by another for some other debt And notwithstanding what hath been said an Executor cannot in all Cases pay him first who first commenced sute but he who first hath Judgement must first be satisfied as when one Creditor doth first begin sute and others suing after him get Judgement before him And in such Cases the Executor may expedite the sute of the one by a quick confession of his Action and retard the sute of the other by Essoignes Emplances or dilatory pleas Nay after sute commenced yet until the Executor hath notice thereof he may pay any other Creditor and then plead that he hath fully administred before notice of the others sute 7. For it is a good Plea for the Executor to say That he had fully Administred before he had notice of the Plaintiffs Writ for though he do pay debts upon Contracts the Writ depending against him upon a Bond whereas he had no notice of the sute he shall not be in such case charged Yet regularly in this case of an Action brought upon a simple Contract the Executor is to plead and to set forth those debts upon Specialties yet debts upon a simple Contract are to be paid before debts of Charity Likewise debts upon a simple Contract are to be paid before amends for a Tespass done by the Testator And here Note that between a debt by Obligation and a debt for Dammages upon a Covenant broken there is not any priority or precedency but the Executor may pay which he please first But if one hath a debt due to him from the deceased upon a simple Contract or the like and he sue the Executor for it when there be debts due to others upon Bonds and Bills unsatisfied in this Case the Executor may not pay this debt nor may he suffer the Plaintiff to Recover in his Action unless he hath Assets sufficient to satisfie the Bonds and Bills over and above that of the simple Contract 8. After Obligations Debts due upon simple Bills or Merchants Books or other Specialties are to be satisfied and discharged though indeed Bills are of the nature of an Obligation and charge the Executor as well as an Obligation for whatever words prove a man to be a debtor or to have another mans money in his hands or wherein the Testator if he were alive could not wage his Law shall charge the Executor And under this Head may be placed debts due upon Shop-Books and some verbal Contracts and Covenants Parol 9. Now debts due for Rent upon Leases of Land or Grants of Rent will come into Consideration though some are of Opinion that debts due for Rent in the Testators life-time be the Rent reserved upon Leases made by or without Deed for years or at Will are in equality of degree with debts due upon Specialties if the Rent grew due since the Testators death then it is not in Law accounted the Testators debt for only so much is in Law accounted Assets to the Executor as the Profits of the Lease amounted to over and above the Rent so as for that Rent so behind the Executor himself stands debtor and therefore is sueable in the Debet and Detinet whereas for the Rent behind in the Testators life-time and all other the debts of his Testator he must be sued in the Detinet only For this reason it is that an Executor sued for debt upon Bond or Bill cannot except in some special cases plead a payment or recovery of Rent grown due since the Testators death though of Rent behind at the time of his death it be
That in the Principal Case the substance of it was the Possession and not the Administration It was adjudged for the Plaintiff Pasch 27 Eliz. in C. B. Carter and Crofts case Godbolt 33. Vid. Dyer 304. An Administrator brought an Action of Debt for Rent which was found for the Plaintiff and Judgement given Exception was taken that the Plaintiff had not shewed by whom the Letters of Administration were granted to him But the Opinion of the Court was That it was too late to shew that after Verdict for that the Jury have found that the Administration was duly granted And it was said in the Court That in a Declaration it is not necessary to shew by whom the Letters of Administration are granted or to say that they were granted by him cui pertinuit or per loci illius Ordinarium Yet Note that it was said in another case That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintiff to shew by whom the Letters were granted to the Defendant but he must shew by whom the Letters of Administration were granted to himself to entitle him to the Action for if it appear not to the Court that he is Administrator he cannot Sue If an Infant be made Executor Administration during the Minority of the Infant may be committed to the Mother and the same shall cease and be void when the Infant is of the Age of Fourteen years But such Administrator cannot sell the Goods of the Testator unless it be for necessity of payment of debts because he hath the Office of Administrator only pro bono commodo of the Infant and not to its prejudice Note it was resolved per Curiam That an Administration durante minori aetate of an Executrix was not within the Statute of 21 H. 8. of necessity to be granted to the Widow of the Testator because there is an Executor all the while otherwise if the Executor were made from a time to come An Infant was made Executor and Administration was granted to another durante minori aetate of the Infant who brought Action of Debt for money due to the deceased and had the Defendant in Execution and then the Executor came of full Age. It was moved that the Defendant might be discharged out of Execution because the Authority of the Administrator was determined and he cannot acknowledge satisfaction And it was said That he was rather a Bailiff to the Infant than an Administrator But the Judgement of the Court was That though the Authority of the Administrator was determined yet the Recovery and Judgement did remain In an Account brought by an Administrator durante minori aetate against the Defendant as Bailiff of such a Mannor it was found for the Plaintiff It was moved in stay of Judgement That it is not shewed that the Executor the Infant was within the Age of Seventeen years and it might be he was above the Age of Seventeen years and yet under Age But the Opinion of the Court was That it shall not be so intended unless it be shewed that he was above Seventeen years and especially when the Defendant had admitted him to bring the Action and had pleaded to Issue Between P. and S. the Case was An Infant was made Executor to whom certain Leases among other things were devised and Administration during his Minority committed to one who sold and alienated the Leases It was agreed by the Justices That the Administrator could not sell the Leases unless there were good and reasonable cause moving thereunto as in case there were no other Goods save the Leases wherewith to pay the Testators debts which ought of necessity to be paid the Leases may to that end and purpose be sold otherwise not but Beasts and other things which cannot long be kept or preserved especially fat Beasts Corn or the like may be sold And of this Opinion was the Chief Justice of the Kings Bench and the Chief Baron Debt as Administrator of B. upon an Obligation the Case was That the Intestate died in Lancashire but the Obligation was at London at the time of his death and the Bishop of Chester in whose Diocess he died committed Administration to J. S. who released to the Defendant and the Arch-Bishop of Canterbury committed the Administration to the Plaintiff and this Release was pleaded in Bar and it was thereupon demurr'd Warberton Every Debt follows the person of the Debtee and Chester is within the Province of York where the Arch-Bishop of Canterbury hath nothing to do Anderson Where one dies who hath Goods in divers Diocesses in both Provinces there Canterbury shall have the Prerogative otherwise there would be Two Administrations committed which is Res inaudita The Debt is where the Bond is being upon a Specialty but debt upon a Contract follows the person of the debtor and this difference hath been oftentimes agreed vid. Dyer 305. And if the Arch-Bishop of Canterbury hath not any Prerogative in York but that several Administrations ought to be committed yet at leastwise Administration for this Bond ought to be committed to the Arch-Bishop of Canterbury wherefore the Release is not any Bar. Debt against the Defendant as Administrator of F. he pleads a Recovery against him as Executor and besides to satisfie that he hath not any Assets And it was thereupon demurred and adjudged to be a good Plea and he shall not be twice charged wherefore it was adjudged for the Defendant Debt against the Defendant as Administratrix of T. H. her Husband upon a Lease to the said T. by Indenture for years and how the Defendant is Administratrix to him And for Rent arrear after his death the Action was brought in the Debet and Detinet upon Not Guilty pleaded it was found for the Plaintiff and now moved in Arrest of Judgement That the Declaration was not good for that c. And at another day it was moved That this Declaration ought to have been in the Detinet and not in the Debet and Detinet because she hath the Term as Administratrix and is not charged by her own Contract but by an Act of the Testator and to that purpose was cited 19 H. 8. 8. 10 H. 5. 7. And a President was shewn in C. B. between Barker and Kelsay where the Action was brought in the Detinet only And Godfrey affirmed that in Fenns Case in this Court it was Ruled That the Action ought to be brought in the Detinet Gaudy The Action is well brought in the Debet For this Rent though Arrear after the death of the Intestate begun first in the Administratrix and therefore the Action well lies against her in the Debet For the reason why the Action against an Executor shall be in the Detinet is for that the debt grew due by the Testator and therefore it cannot be said that Executor Debet But in an Action against the Heir it shall
be in the Debet and Detinet because he is bound by special words in the Obligation and here the debt which in the time of the Administratrix occurr'd is her debt and in Dyer 6 Ed. 6. 81. the Action is brought in the Debet and Detinet for Rent Arrear in the time of the Executor and admitted to be good Popham accord For the being charged with the Rent in her time it accrews by reason of the Profits of the Land which she her self received and therefore she is charged having quid pro quo For if an Executor hath a Lease for years of Land of the value of Twenty pound per Ann. rendring Ten pound per Ann. Rent it is Assets in his hands only for Ten pound over and above the Rent Fenner agreed to this Opinion and to that purpose cited 10 H. 6. 11. That the Husband shall be charged after the death of the Feme for Rent Arrear in his own time because he received the Profits of the Land So as the Rent grew due in respect of the occupation and taking of the Profits And therefore she is chargeable and not meerly as Executrix Clinch agreed with them wherefore it was then adjudged for the Plaintiff Note That afterwards this Judgement was reversed in the Exchequer Chamber for the point in Law For all the Judges of the Common Bench and Barons of the Exchequer held That she ought to be charged in the Detinet because she is charged only by the Contract of the Intestate 5 Co. 31. The Case was One died Intestate in the County of York and a Stranger prayed Letters of Administration to be granted to him which was Repealed by the Delegates at York there was an Appeal to the Court of Delegates in the Chancery who did Repeal the former Sentence at York and adjudged that the Party made no Will and granted Letters of Administration to him who Appealed to them The Arch-Bishop of Canterbury granted Administration to a second person and the Arch-Bishop of York to a Third person who made a Release unto the Debtor of the Intestate upon which Release debt was brought by the first Administrator against the Defendant who pleaded the Release made to him And whether this grant of Letters of Administration by the Judges Delegates were good or not was the Question But the better Opinion of the Court was That the Letters of Administration which were granted by the Judges Delegates was not good but there being Bona Notabilia the Administration was to be granted by the Arch-Bishop And it was said That if the Party who died Intestate had Goods in several Provinces both the Arch-Bishops there having a Peculiar might grant Letters of Administration and although the King be Supream Ordinary and by Delegates may do many Acts yet the Court of Delegates cannot do this nor have they power to Prove any Wills for the power of the Judges Delegates is Potestas Delegata corrigere non exequi And the Court said That it was adjudged in one Brakenburies Case That the Judges Delegates had not power to grant any Letters of Administration An Exception was taken to a Declaration because the Plaintiff conveyed his Interest to an Administrator to whom the Arch-Bishop of Canterbury did grant the Administration of all the Goods of the Lessee and did not shew how the Arch-Bishop granted it either as Ordinary or by his Prerogative And this was held by all the Court a material Exception But it was afterwards alledged That all the Presidents in this Court viz. B. R. and in C. B. were so in general without special shewing how and for that they would not change the Presidents they disallowed the Exception And in this Case it was held That if an Administrator doth grant Omnia bona catalla sua a Term which he hath as Administrator doth not pass for it is not suum but he hath it in right of the Intestate But if one hath a Lease as Executor or Administrator of the Mannor of D. and he granteth all his right and interest in the Mannor the Term which he hath as Executor c. doth pass for he had no other Right in it and his intent is to pass it but by general words it shall not pass Debt against the Defendant as Administratrix she pleaded Plenè Administravit the Jury found That the Intestate was indebted to divers by Obligations and that after his death the Defendant had taken in the Obligations and had obliged her self to pay the greater part of the summs contained in the Obligations at certain dayes to come and for the residue had promised to the parties That in consideration of delivery in of the said Obligations that she would pay c. And by the Opinion of Anderson Windham and Periam it was held clearly a good Administration so that the property of the Goods of the Intestate to that value were altered and changed in the Defendant Action Sur Trover And Declares as Administrator of J. S. and that Administration was committed to him by A. B. Official to the Bishop of Peterborrough and sheweth not that he was Ordinary of the Place or that the granting of Administration did belong to him and this matter after Verdict was alledged in Arrest of Judgement but because divers Presidents had been so and that such Declarations had been allowed the Court did give Judgement for the Plaintiff Debt as Administrator to one Philips and Declares That Administration of the Goods of Philips was committed to him per Adrian Vane Sacrae Theologiae Doctorem such a day apud Monmouth and the Plaintiff recovered in the Common Bench by default and Writ of Errour was thereon brought and the Errour Assign'd because it is not shewn that Vane was Ordinary of Monmouth nor that the committing of Administration appertained to him and in regard it was in a Declaration which ought to be certain and he is not a Bishop nor any person who may be intended to be the Ordinary the Judgement was therefore reversed It was moved by Coke the Queens Atturney That the committing of Administration being by the Arch-Bishop although he had not Goods in divers Diocesses because it is in his Province wherein he hath Jurisdiction it is not void but only voidable by Sentence and it is not like to an Administration committed by another Bishop of the Goods of a man who died in another Diocess or who had Goods in divers Diocesses and this difference hath been taken and agreed in the Queens Bench c. But the Justices said it was all one and the Administration is void in both cases and not voidable only Debt upon an Obligation of One hundred pound one of the Defendants was Out-lawed the other pleaded that he who was Out-lawed was made Executor and solely Proved the Will and Administred and that the Defendant as Servant unto him took divers of the Testators Goods by his Delivery and by his appointment had sold them
Absque hoc that he Administred as Executor or in any other manner and it was thereupon demurr'd and adjudged to be an ill Plea because he doth not say that he refused before the Ordinary nor confesseth any Administration for that which he confesseth is not any Administration and so no answer to the Plaintiff Wherefore it was adjudged for the Plaintiff Debt The Plaintiff as Administrator of J. S. sued upon an Obligation made by the Defendant and had Judgement afterwards the Administration is revoked but notwithstanding that the Plaintiff proceeded and got the Defendant in Execution And upon a motion to the Court it was agreed by the whole Court That the Execution was void and that the Defendant ought to be discharged Quia Erronicè emanavit for that the Letters of Administration being revoked the Plaintiffs power is determined therefore the ground of his sute being overthrown viz. his Commission he hath no Authority to proceed further and the Execution issued without Warrant The same Law per Curiam on a Judgement for an Administrator the second Administrator shall not have Execution thereon for he is not privy to the Record Quod nota Debt The Case was Rent was granted to Baron and Feme for their lives the Rent was Arrear the Baron dies another Rent is Arrear the Feme dies Intestate and her Administrator brings debt for the Arrerages due in the Life of the Baron and after All the Court resolved that it well lay because the Arrerages survived to the Feme as well as the Rent it self But an Exception was taken to the Declaration for that it is alledged that Administration was committed by the Dean of Lichfield and it shews not by what Authority he committed it nor that he was Loci illius Ordinarius and for this cause the Court held the Declaration to be ill for the Court intends not his Authority being special without shewing it But the pleading of Administration committed by a Bishop is good enough without saying that he was Loci ilius Ordinarius for so it shall be intended and so the Presidents warrant it but in a Bar of Replication it is vicious vid. 35 H. 6. 46. Debt brought against C. as Administrator and Judgement thereupon and now moved in Arrest thereof That this Action was brought by an Administrator who shews That Administration was committed to him by the Arch-Deacon but shews not what Authority the Arch-Deacon had to commit Administration and in proof thereof 21 H. 6. 23. and 35 H. 6. 46. were cited And the difference is where Administration is committed by the Bishop or Metropolitan and where by one who hath a peculiar Jurisdiction for in the last case he ought to shew how he hath his power Plowd 297. And although it be after Verdict yet it is not holpen by the Statute of 18 Eliz. cap. 14. being matter of substance and not of form as it was adjudged in Cutts and Bennetts Case but the Court held that it was well enough and they said That the Books are of Peculiars for it cannot be intended that they have any Authority unless it be shewn But the Arch-Deacon is Oculus Episcopi And de Jure Ordinario he is to commit Administration And it was adjudged for the Plaintiff An Executor recovers Debt and dies Intestate the Ordinary committs Administration de bonis non c. The Administrator shall not have a Scire Facias on the Judgement but a new Action of Debt as Administrator to the first Testator who is now dead Intestate A man sets a Lease for years the Lessee Covenants for him and his Assigns that he will not Lop nor Top the Trees during the Term And after the Lessee dies Intestate and the Ordinary committed Administration to J. B. who lopp'd the Trees whereupon the Opinion of the Court was That it was a breach of the Covenant for that an Administrator is an Assign as well as an Executor Administrator brought Debt and declared that Administration was committed to him by A. B. Sacrae Theologiae Professorem and saith not Loci ilius Ordinarium for which cause upon Errour the Judgement was reversed In this Case the Question was whether the Ordinary had power to take a Bond or Obligation of the Administrator to distribute according to the Ordinaries discretion the Goods that should remain after Debts and Legacies paid And it seemed to the Court That such Obligation is not good But in regard the Case was of great consequence Adjournatur Debt brought by J. S. against A. P. Executor of H. W. upon a Bond or Obligation of One hundred Marks the Defendant pleaded he was never Executor nor Administred as Executor whereupon they were at Issue and at a Nisi Prius it was found by a special Verdict That he had received Seven pound Debt due to the Testator and made an Acquittance for the same and took into his possession several particular parcels of Goods of the Testators and converted them to his own use whereupon all the Justices resolved That it was an Administration but at the Request of Sir Anthony Brown they respited the Judgement after the Defendant died and it repented the Justices that they had not given Judgement The Ordinary may grant several Administrations of several parts of the Intestates Goods 10 Ed. 4. 1. b. 18 H. 6. 22. b. 38 Ed. 3. 21. Also he may grant the Administration conditionally as whereas it was before granted to J. S. who is now Out-lawed or a Prisoner or beyond Sea c. he may grant it to another with an Ita tamen That if the said J. S. return into England he shall Administer when he returns If an Executor takes only the Goods which the Testator in his life-time took from him per tort it is not an Administration If certain Goods be devised to a Co-Executor and he take them without the Assent of the other Co-Executor it is an Administration because a Devisee cannot take the Goods devised without the Executors Assent Administration may be committed of the Goods of a Woman Covert who dies Intestate for possibly she might have things in Action which by the Law are not given to her Husband nor after her decease are at all invested in him D. 8 Eliz. 25. 90. Admitt A man possessed of Goods made an Infant his Executor and died the Ordinary committed Administration durante minoriaetate of the Infant to a Stranger The Question was when the Infant came of full Age what Remedy he should have against the Administrator for the Goods It was the Opinion of the Justices That he should not have an Account against him but he might have Detinue against him for the Goods or otherwise Sue him in the Ecclesiastical Court for them Debt against an Executor The Defendant pleaded That he had taken Letters of Administration The Plaintiff replyed That he Administred of his own wrong and after took Letters of Administration It
after recede from it to the prejudice of the Legatary Likewise if the Testator saith I give 10 l. to A. B. when my Executor will or when my Executor please In this case as in the former the Legacy is not due till the Executor thinks fit but must wait his pleasure and be in a dilatory Expectancy as long as he lives or so long as he doth not say he will pay it But if once he declare that he will pay it and after dyes before he doth pay it his Executor is obliged to make it good Contrariwise if the Legatary dye before the Testators Executor declares his consent to the payment thereof for then it doth not accrue to the Legataries Executor because it is Conditional till the Executor declares his consent to pay it and such a Condition to be performed at the pleasure of another as that the Legacy cannot come to the Legataries Executor before the Accomplishment thereof 3. If the Testator saith I give A. B. 10 l. if my Executor will In that case the Legacy is void because there the Testator subordinates his Will to the Executors makes his Executors Will Absolute and his own Insignificant But in case he saith after this manner viz. If my Executor think fit I give A. B. 10 l. Or if my Executor conceive it expedient let A. B. have 10 l. In these cases the Legacy is good because here the Testator seems not to leave it wholly to the meer will and pleasure of his Executor but as it were to the judgment of any honest or indifferent person or as the Law phrases it arbitrio boni viri The Law is the same in case the Testator saith if my Executor see cause for it or it seem reasonable to him Let A. B. have 10 l. or I would have A. B. to be 10 l. the better for me For although a Legacy cannot be left to the meer will and pleasure of the Executor yet to his just and reasonable will it may for so it is left more to Reason than to his Will 4. But what if the Testator saith I give 10 l. to A. B. if he shall deserve it of my Executor In that case the Legacy is due in case the Legatary shall carry it no otherwise towards the Executor than as any honest man would or might do in the like case or no otherwise than as any honest and indifferent person might or would be well satisfied therewith Likewise if the Testator saith I give A. B. 10 l. if he hath not offended my Executor the Legacy is due if it appears that A. B. hath behaved himself towards the Executor no otherwise than what would satisfie any reasonable and impartial man In a word when it is left wholly to the meer free and arbitrary will and pleasure of the Executor the Legacy is void but when it is left to his will only as it shall seem meet just and equal to him it is good for if in it self it be just and equal the Executor may not interpret it otherwise 5. If a man Devise all his La 〈…〉 to A. B. and his Heirs excepting Twenty pounds for Ten years which he willeth shall be employ'd for his Children This is a good Devise of the Sum of Twenty pounds a year for Ten years Or if one bequeath 20 l. to the Children of A. B. who then hath three Children more or less at the time of making such Bequest and after but before the Testators death he happen to have other Children In this case those other Children he hath afterwards shall have no part of the said Legacy but the Children born at the time of making the Testament shall have it all The Reason is because in this case it is presumed the Testators intention did not extend to any not in rerum natura when there were Children indeed and at the same time in being 6. The Testator saith I give 100 l. to my four Neighbours A. B. C. and D. Provided they bestow 10 l. in a Tombstone to be set on my Grave Although B. should refuse to joyn with the rest therein yet A. C. and D. shall have not only theâ—r respective proportion of the 100 l. but also that part that should have come to B. in case he had performed the Condition Or if he say I give 100 l. to A. and such of my Three Children as shall come to my Funeral and dyes neither of his Children are at his Funeral In this Case A. shall have the whole 100 l. because the Legacy is in the Conjunctive were it in the Disjunctive he could have but 50 l. 7. Suppose the Testator saith I give 50 l. to A. B. And more than that 100 l. to C. D. In this case C. D. shall have an entire 100 l. but no more Possibly the transposition of the words may alter the Case and make the Legacy worth 150 l. to C. D. As if he should say I give to A. B. 50 l. and 100 l. more than that to C. D. But suppose he should say I give 100 l. to C. D. more than I have given to A. B. when indeed he had given nothing at all to A. B. In that case the Legacy of 100 l. is good to C. D. notwithstanding that false Implication to A. B. 8. A. B. makes C. D. his Executor gives in his Will 1000 l. to J. G. and therein sayes I desire that J. G. will pay the said 1000 l. to the Colledge of W. and dyes After the said Colledge is dissolved and before J. G. had received the said 1000 l. from the Executor of A. B. the Question is whether J. G. shall now recover the 1000 l. from the said Executor the Colledge to whom he was to pay it being now dissolved or whether it shall remain in the Executor It is resolved that in case there was no fault in J. G. why the 1000 l. was not paid to the Colledge before its dissolution and the payment prevented for no other Reason but because of the said Dissolution J. G. shall in such case recover the 1000 l. from the said Executor 9. If a Testator bequeath 1 〈…〉 l. to A. B. and C. D. And after one of them appears incapable of taking by the Legacy the other shall have only 50 l. and not the whole 100 l. Yet there are and they of the most Learned who hold That if one of the Legataries be incapable his proportion of the Legacy shall accrue to his Collegatary as is evident by the former Case of the Tomb-stone and never fails where the Legacy is in the Conjunctive by the Law of Accression or jure Aderescendi 10. A. B. pawned a Jewel with C. D. for 100 l. then in his Will makes his Son his Executor and orders that C. D. should sell the Jewel and out of the Proceed thereof pay himself the 100 l. and restore the overplus of the value to his
a Bond or Obligation is bequeathed in the latter a Discharge or Release 4. And when a Creditor bequeaths a Debt it is not alway material to insert any certain Sum of Money in the Legacy of that Debt for suppose the Testator sayes I bequeath the 10 l. which A. B. owes me be it to A. B. himself or any other in that case a right rather than any certain Sum is understood to be given because if A. B. owed the Testator nothing then nothing is bequeathed and so the Legacy Fruitless 5. But now on the other hand when a Debtor bequeaths what he owes and the Legacy be given to the Creditor himself In that case it is very material to see whether any certain Sum be express'd in the Legacy or not for if there be as when a Debtor-Testator saith I bequeath to A. B. 10 l. which I owe him In that case not so much a bare right only as a certain Sum of Money seems to be bequeathed him for which reason a Legacy of 10 l. will be good to A. B. albeit the Testator owed him nothing 6. But if there were no certain Sum express'd by the Debtor-Testator as if he had only said I bequeath to A. B. what I owe him It is a Fruitless Legacy if he owed him nothing In like manner if a Testator saith I give my Wife what I had with her in Marriage or her Marriage Portion if he had nothing with her in Marriage the Legacy signifies nothing yet if he had said I give my Wife 100 l. which I had with her in Marriage or for her Marriage-Portion though in truth he had nothing with her the Legacy shall be good and is worth her 100 l. Or having had 100 l. with her shall in his Will say I give my Wife 200 l. which I had with her in Marriage the Legacy is good for 200 l. yea though he should therein refer himself to the Articles of Marriage and add as is contained in certain Covenants of Marriage made between us The Reason is because the Law more considers the thing it self when in terminis express'd in a Legacy than any false demonstration thereof Unless it can be sufficiently proved That the Testator meant otherwise than he spake or that he err'd in supposing that to be true which was not so In which case the Legacy avails nothing albeit a certain Sum were in terminis express'd by him 7. For which Reason the Legacy is not good in such case unless he certainly knew he owed nothing to the Legatary otherwise it is if he supposed he did when indeed he did not And the Reason why a Legacy given by a Creditor is nothing worth though the Sum be express'd if nothing be due to him And quite otherwise in the like case if the Legacy be given by a Debtor the Reason I say of this Difference is because the Creditor is understood to bequeath only a Debt Bond or Obligation but the Debtor doth bequeath a certain Sum by Name or the very thing it self expresly 8. A Testator in his last Will and Testament inter alia saith whereas I have in my custody a certain Instrument of Writing wherein A. B. stands bound in the Sum of 400 l. for the payment of 200 l. to C. D. I will that my Executor shall restore the said Bond to C. D. or pay him 200 l. After the Testators death the Bond cannot be found among any of his Writings nor any knowledge thereof possibly had In this case Judgment was given against the Executor and he condemn'd in 200 l. to C. D. as a good Legacy to him by the said Testator 9. When a Debt is bequeathed whereon nothing is due the Bequest is Fruitless if the Testator believed it to be a good Debt albeit the Sum or quantity thereof were express'd in the same But if the Testator when he bequeathed such Debt knew there was nothing due upon it the Legacy is good And although he who bequeaths a Bond bequeaths the Debt contain'd therein yet he that bequeaths to his Debtor the Silver Cup or the like which he had of his in pawn for 5 l. doth not thereby bequeath him that Debt of 5 l. The Reason is because there is nothing but the Pawn or Pledge released the duty and personal obligation still remains Note that he who bequeaths his Debts is understood to bequeath his Credits that is the Moneys or what else is owing to him for Debts as was before observed are taken both Actively and Passively but in this sense of a Creditors bequeathing them they are only taken Actively 10. If a Testator bequeath to A. B. whatever C. D. owe him and C. D. at the same time wrongfully detain'd the possession of certain Lands from the Testator these Lands shall pass by the Devise to A. B. as well as the Money which C. D. owed the Testator as hath been adjudged not at the Common but Civil Law for it is more than presumed that at the Common Law such words though in a Will not Nuncupative but Written are no capable of being by any legal Intellect strain'd to a Latitude of that extent or whether he that bequeaths his Books of Accompt or his Shop Books shall thereby be understood to bequeath the Debts contained therein as also the Moneys in the said Books Calendaried by way of Accompt and design'd for Trade as is likewise evident by the Civil Law 11. Although the Bequest of a Debt is a good Legacy so long as it is a Debt and the Bequest unrevoked yet the Payment of a Debt to the Testator in his life-time extinguisheth the Legacy thereof formerly Bequeathed by him Not so in case it were paid to his Executor soon after his Decease And this holds true albeit the Debt consisted in some certain specifical thing if it perish'd in the Testators time otherwise the Legacy is good Likewise the Testators giving an Acquittance to the Debtor doth extinguish a bequeathed Debt The Reason hereof is because by all these wayes the very substance it self of the Debt which was the thing bequeathed is destroyed yet here Note withall That if a Testator doth demand a Debt which he had bequeathed not with any mind of abating the Bequest but fearing the failure or future Insolvency of the Debtor and shall after keep this Money by it self with some signification therewith what Money it was in such case the Legacy is good notwithstanding such payment precedent which holds yet more strong in case the Testator demands it not but the Debtor himself comes and offers it and with such earnestness as the Creditor-Testator cannot well refuse it And if afterwards the Testator makes a Purchase with part or all of this money which he so demanded not with any mind of abating the Legacy as aforesaid the Bequest remains still good to the Legatary So that if I bequeath
provided that that least or worst be not decay'd and altogether unprofitable as Brass Money instead of the real Diana or decay'd Wines instead of rich Canary But when the general Legacy is of things Animate then the Executor ought to chuse for the Legatary as not the best so not the worst but at an equal distance between them both But if the Legacy be not of generals but of something certain and specifical yet which of them the Testator he having many of the same kind intended is a Non Constat the Executor in that case may deliver the least because now the Question is not so much touching the Election as the Declaration which the Law ever gives to the Executor for Election refers to uncertainties but Declaration to obscurities as in the last precedent Case 7. Suppose a Testator doth bequeath a Horse or an Oxe to A. B. which he will or which he shall chuse and he supposing an Oxe onely to have been given him in the Will makes no other demand of the Executor than of the Oxe who delivers it him accordingly Afterward finding his error and understanding that he had it in his right to chuse either a Horse or an Oxe demands a Horse and restores the Oxe The Law is against him and leaves him in this case without Remedy The Law is the same in case the Executor by the Will having the Election in himself whether to give him the one or the other but supposing a Horse only to have been given him doth deliver it to him accordingly and after finding his Error would remand it and give him an Oxe he cannot 8. If a man bequeath to A. B. a Horse or a Yoke of Oxen and the Testator hath neither Horse nor Yoke of Oxen nor that which he so bequeathed yet is the Legacy good and the Executor chargeable therewith In which case the Election as to the value of the thing bequeathed whether in the Executor or the Legatary may vary as was formerly hinted according to the Testators words in the manner of the disposition it self And therefore if a man bequeath one of his Horses to A. B. not saying which Horse in this case A. B. shall have the Election if there be more than one But if the Legacy be directed not to the Legatary but to the Executor as when the Testator saith I will that my Executor shall deliver A. B. one of my Horses In that case the Executor hath the Election and may deliver which of them he will 9. If the Testator saith I give 10 l. to A. B. or C. D. at my Executors choice or as my Executor shall chuse and the Executor shall after make choice of one of them and pay him 10 l. he is discharged from the other But if he will make choice of neither of them each of them may demand the whole 10 l. as if the Legacy were given to him alone and then he shall be preferr'd in this case who first Commences his Suit In other Cases who first gets Judgment 10. If there be a doubt and dispute between two persons pretending to the same Legacy to which of them it belongs as if the Devise be to Thomas Stiles without other description distinction or discrimination of the Person and there be two of that Name of equal respect with the Testator or both alike his Friends or Acquaintance In this case the Executor hath his Election to deliver the Legacy to which of them he please Yet some are of Opinion that in such case the Legacy is void and null by reason of uncertainty 11. I Devise to A. B. my Dwelling-house if he doth not chuse my great Meadow in Dales This is all one as if I said I Devise to A. B. my said House or Meadow which he will Or as if I said I Devise to him my Meadow if he doth not chuse my Dwelling-house In both which cases A. B. hath his Election 12. If the Testator saith that A. B. shall have one of his Horses or that he shall chuse one of his Horses which he will and A. B. through a mistake doth chuse a Mare he hath determined his Election and though he repent of his choice and would restore the Mare he cannot chuse again as also because Mares do pass in a Devise of all the Testators Horses 13. If a man having two Horses doth bequeath one of them but it doth not appear which in regard the words of the Legacy are not directed either to the Executor or Legatary so as thence to infer unto which of them he intended the Election In such case the Legatary shall have the Election because it being certain that a Horse he bequeathed but uncertain which not expressing himself at which certain Horse he aim'd the Legacy The Executor shall not in this case interpret his mind for in all doubtful Cases it shall be construed in favour of the Legatary 14. A. B. Covenants with C. D. to convey him such a Field or to pay him 50 l. which of the two C. D. please C. D. makes his Will and therein gives to J. G. whatever A. B. owed to him the said C. D. and dyes The Question is what J. G. can by this Devise recover from the Executor of C. D. The answer is he may compel him to Commence an Action against the said A. B. And as C. D. had his Election whether he would have the Field or 50 l. which Election upon his Decease came to his Executor So now by vertue of this Devise that Election shall be in J. G. as the Legatary of C. D. 15. A Testator having eight fat Oxen saith I give them all to A. B. or 10 l. for each of them at his own choice A. B. doth choose four of the Oxen and doth demand 40 l. for the other four This the Legatary may not do for the Legacy of all the Oxen is but one Legacy and therefore may not be Divided Also the value of the Oxen is but one Legacy for which reason may that neither be Divided The Case is the same if a man bequeath 50 Gallons of Sack or Five Shillings for each Gallon at the Legataries choice he cannot divide the Legacy but must take it all in Sack or all in Money Otherwise if such Division were Admissable and the Testator should give such a Horse or Five pounds at the Legataries choice this absurdity would follow the Legatary might take Fifty Shillings and one half of the Horse CHAP. XXV When and How Legacies are Null or become void or voidable with Certain Cases in the Law touching Revocations 1. THe Reason why Legacies and Bequests do so often prove Ineffectual is not so much because they were originally Null or became afterwards void or voidable by any thing relating either to the State or Person of either the Testator or the Legatary or by reason of some accident happening
Condition of Superstitious Vses vests the Land in the Crown Ibid § 11. What Provision of Law in Case the Legatary die before Condition broken or the time for performance be come p. 281 § 11. Conditions Testamentary in reference to Marriage p 27 c. Conditions directly against Marriage are unlawfull with the Limitations thereof p. 342 343 § 25. Condition of Marriage is annexable to a Legacy or Devise but an unlawfull Condition thereof is void p 279 § 1. Condition of Marriage with the consent of another doth oblige the Legatary to Marry but not to have such consent Ibid § 2. Condition of Marriage with the Advice of another obligeth the Legatary to Ask it but not to follow it Ibid § 3. What in case the Legatary were Married before Ibid. § 4. p 316 § 18. Though a Condition against Marrige be void yet the Legacy is not p 280 § 5. The Canon Laws Distinction in case of Conditions directly contrary to Marriage p 280 § 9. Conditions of Non-alienation are intended only of voluntary Alienations p 438 § 17. Conditions necessary are as no Conditions Ibid § 18. Conditions implyed by Relative Pronouns Ibid § 19. Positions in Law touching Conditions p 438 § 16 to 26. Conditional Testaments how and when such p 22 23. The several kinds thereof p 23 to 27. Confidence in a Feme Covert is not transferrable to the Husband upon her death p 236. infin Consent or Delivery by an Executor requisite to a Legacy or Divise p 440 § 39 c. Corne standing is Devisable where the Land it self may not be p 225 § 2. p 304 § 13. Corporations or any Member thereof may not Devise the Land they have in right of their Corporations p 225 § 3. Costs not payable by an Executor Non-suited on Judgment against him p 104 § ult p 110 § ult p 117 § ult Given in Chancery against a Testator doth not charge his Executor p 108 § 6. Coverture nulls a Devise it may revive by a new Publication after the Husbands death p 289 § 9. Courtelage passeth by the Devise of a House p 237 in pr. Creditors made Executors p 74 to 77 They may pay themselves first the Limitations of that Rule p 75 76 § 3. Custome of London in reference to Executors or Administrators touching Debts by simple Contract p 116 117 § ult D. Deaf and Dumb naturally not Intestable absolutely p 19. Whether they may make a Devise of Lands p 226 § 3. Death of the Legatary before the existence of a possible Condition annexed to his Legacy insignificates the same p 325 § 13. Debet Detinet in what Cases And in what Cases in the Detinet only p 113 § 7 p 157 § ult Debts Bequeathed p 321 322 c. p 440 § 36 40 41. p 446 § 95. What Debts not Devisable p 440 § 38. Debts and Things in Action are Devisable by Will some only excepted p 321 § 1. Debts Bequeathed how extinguished or not p 324 § 11. Debt Bequeathed twice is due but once p 325 § 12. Debt Bequeathed to Joint-Debtors Ibid Debt Bequeathed the Executor is discharged by Assigning the Bond to the Legatary p 326. § 17. Debt is where the Bond is but upon a Contract it follows the Person p 157 § ult Where Debt upon a simple Contract may by the Custom be paid by an Administrator as soon as a Debt upon a Bond. p 116 117. § ult Debt is Assets though the Debtor be Administrator p 76 § 4. That can be no Debt in the Executor which was none in the Testator p. 107 § 6. Debt lieth not against an Executor upon a simple Contract of the Testator but an Action of the Case only p. 107 108 § 6 p 109 115 § ult It lyeth against them for Rent of Land Leased to their Testator p 115 § ult Debts by Bonds and Specialties are not Comprized in a general Legacy p 327 § 19. Whether Debts Bonds and Specialties are Comprized under the Notion of Moveables or Immoveables p 310 § 10. The Executors Method in paying of Debts p 142 c. Debts upon Record to be first satisfied p 108 § 7. In what case a Statute may be paid before a Judgment p. 137 138 § ult Debts to be paid before Legacies p 142 § 1. The Reason thereof in Law p. 440 § 45. What Debts to the Crown have Priority to the Subjects Debts p 143 § 3. Executors may satisfie their own Debts before any other of equal quality and degree p 142 § 2. What the Law is in Case of Debts for Rent upon Leases p 146 147 § 9. Declaration precedent Derogatory to the subsequent doth prevail against it p 302 § 4. An Exception to that Rule Ibid. Deed of Purchase Devised what it signifies p 448 § 103. Delegates or Judges Delegate whether they may grant Letters of Administration p 158 § ult Demonstrations false destroy not Legacies p 210 § 3 p 441 § 48. Vnderstand it of False Necessary not False Superfluous Demonstrations p 213 § 1. The difference between that and a False Cause p 214 § 2. Designation how a Legacy shall be paid makes it not Conditional nor Questionable whether it shall be paid p 315 § 14. Detinue in what Cases it lies or not p 102 § 7 § ult p 107 § 5. How it lies for an Infant-Executor against an Administrator Durante Minoritate p 162 § ult Devastavit What and in how many ways it may be in what Cases it lies the Method of proceeding therein and Execution thereupon p 134 c. Devise what p 200 § 1. Its Requisites p 202 § 2. In what Court properly recoverable p 204 § 4. Refused to be Delivered by Executors what remedy Ibid. What words or expressions sufficient for a Devise p 209 c. Wherein a Devise of Lands differs from a Bequest of Goods p. 4 § 2. Devise of a thing not in rerum Natura at the Testators death void p 292 § 20. It is as inferrable from the Testators Intention as intelligible by his expression p 295 § 36. An Omission of what the Testator said he would make a description of doth not null a Devise p. 296 § 37. The same thing twice Conditionally Devised by two Testators to several persons how or in what Case good to either or not p 297 § 41. Devisable what p. 221 c. p 311. § 15. Whether a Testator may Bequeath what is not his own p 221. § 2. What things in particular may be Devised Ibid. § 1. How the Testator may Bequeath what is his Executors p. 222 223. § 3. A Bequest to one of what was his own before Ibid. § 4. The difference between the Common and Civil Law in this point of Devising what is another mans Ibid. § 5. Goods in Joint-Tenancy are not Devisable p. 223. § 6. Devisee or Devisor who may be such p. 205 c. Deuisee must be capable of
ubi sup q. 2. nu 16. Guid. Pap. q. 612. Capriol ubi sup lib. 1. nu 619. § licet Inst de haered quae ab Intest e Gras ibid. q. 2. nu 2. f Grass ibid. q. 17. g Mich. 23 Car. in B. R. Styles 74 75. Vid. Pasch 24 Car. in B. R. Hill and Birds Case Styles 102. acc a Littl. Tenures fol. 1. b §. 1. Instit de Grad Cognat c Stat. de Marlebridge an 52 H. 3. Brook Abridg. tit Administ 47. Coke lib. 3. Ratcliff's Case d Inst de S. C. Tertil in Prin. e Auth. Novel de haered ab Intestat f Brook Abr. tit Administ nu 47. Coke lib. 3. in Rot. lisss Case cum similib This remarkable Case of the D. of Suff. wherein the point was whether the Mother or the half Sister ought to have the Administration is at large in Swinb part 7. §. 8. nu 10. with the reasons of Judgement exactly weighed and considered g 21 H. 8. cap. 5. h §. Si igitur Novel ibid. ubi sup D. D. in 〈◊〉 cum ita §. fin ff de Legat. 2. Grass Thes Com. Opin §. Fidei Commiss q. 16. i Grass §. Success ab Intest q. 22. k Grass ibid. Pet. Greg. lib. 45. cap. 9. nu 10. Cuiac ad Novel 118. l Grass ibid. Greg. cap. 9. nu 11. Covar de Success ab Intest Cuiac ubi supra m Grass ibid. Greg. cap. 9. nu 12. Capriol lib. 2. nu 76. de Succes ab Intest Auth. Novel de haered ab Intest n Novel 118. Cuâ—ac ib. Covar de Succes ab Intest Vasque de Succes progra lib. 3. §. 25. nu 38. Pet. Greg. lib. 45. c. 9. nu 13. Mynsing Observ Cent. 6. n. 41. o Grass q. 23. Greg. 29. Cuiac in Novel 118. p Grass Covar ubi supra q Grass q. 24. Fach lib. 6. c. 8. r Pap. lib. 21. tit 1. art 8. Guid. Pap. Consil 176. s Meynard lib. 7. cap. 21. t Meynard ib. ita Judicat in Arresto Tholos u Decii Consil â—23 a Bract. l. 2. 〈◊〉 30. nu 1. Britt c. 119. b Cuiac ad Novel 18. Capriol lib. 3. nu 125. Grass q. 31. Pet. Greg. lib. 45. cap. 11. nu 8. Covar de Succes ab Iâ—t Peregrin art 21. nu 7 8. de Fidei Commiss c Alex. lib. 3. Cons 5. d Ibid. in fin Consil e Menoch lib. 4. Praes 95. nu 8. f Grass q. 30. g Novel 218. cap. 〈◊〉 Cuiac ibid. Pet. Greg. cap. 11. nu 7. h Littl. l. 1. c. 1. Britt c. 119. nu 7. Fleta lib. 6. c. 1. §. omnes autem §. jus etiam §. quandoque i Littl. ibid. Coke l. 3. in Ratcliffs Case fol. 40. b. 41. a. b. 42. a. k Littl. ibid. paulo post l Grass §. Successio ab intestat q. 33. m Ranchin Decis par 4. Consil 45. Alex. lib. 5. Consil 166. n Boerii Decis 302. o Authen post fratres de Legit. haered p §. ult Inst de Success Cognat q l. Praetor ff de Coll. 60. r Auth. de haered ab intest §. reliquum §. seq C. de haered Auth. cessante Auth. Tres fratres s Cod. de Leg. haer de Emanciâ—at in fin a Terms of Law Ver. Devise b §. 1. Inst de Legat. c §. non autem Inst de Codicil Et L. ab Intest ff de jure Codicil d Terms of Law ubi supra e Cowell Interp verb. Devise f Perk. Sect. 406. g L. tertia l. eum qui ff de Probat h L. si ita legatnm de aut arg i Bart. in l. ult §. 1. de Leg. 2. k Bald. Cons 284. nu 1. vol 2 l Rom. in Auth Similit E. nu 93. C. ad Leg. Falcis l. Si cognatis m Dict. l. si cognatis n Dict. l. si ita De aur arg Raph. Fulg. Cons 99. nu 〈◊〉 o Aurel §. 1. de Liber Leg Fulg. in Cons 37. p Paul Castr in l. cum stipulamur nu 3. de verb. obl Jas in l. si quis § illud nu 10. qd quisque jur q Alciat Cons 182. lib. 9. r Paul Castr Cons 132. lib. 1 Dec. Cons 472. nu 5. s Oldr. Cons 31. l. uxorem §. testam Bald. de Leg. 3. l. medico in prin de aur arg t Bened. Cap. Cons 45. nu 5. Cor. Cons 14. nu 14. Paris Cons 80. nu 41. Vol. 2. u L. quae dam ff de ju Codicil w Bart. in l. his verb. in prin de Leg. 5. x L. filiam de aur arg y Dict. l. filiam Rol. Val. Cons 39. nu 12. Vol. 4. z L peculium in prin de leg 2. l. grege de leg 1. a Alciat Cons 173 nu 4. lib. 9. b Jas in l. cum stipulamur nu 3. ad fin de verb. oblig c Bart. in l. si ita nu 8. de aur arg in l. quid haeredem nu 2. de Trit Legat. d L mea res l. eum qui. Glos de cond demon e Bart. in l placet nu 2 de Lib. posth f L. 3. in fin de Adim g Bald in Rub. C. de Verb. sign nu 4. h B 〈…〉 in l. si ita legatum de Cond dem i Terms of Law verb. Devise Off. Exec. cap. 19. in prin k Ibid. l Broo. tit Devise nu 3. 6. 14. 27. 30. m Mich. 5. P. M. Dyer so 151 152. Mich. 29. 30. Eliz. Co. B. Germyes case Hob. Rep. so 265. n Brown Rep. 1. part so 34. o Perk. Sect. 576. 579. Dr. Stu. lib. 2. cap. 55. Cowells Inst p. 146 p Perk. Sect. 576 577 c. Coke sup Lit. III. a L. qua aetate ff de Test §. praeteria Inst quibus non est permiss fac Testa l. si frat C. qui testa fac poss l. ult C. de Testa Mil. Perk. tit Devise fo 97. b Coke sup Lit. 112. 4. 61. Broo. Devise 32. c Perk. Sect. 496. d Cod. de Haered instit l. 1. e ff de Haered inst lâ—si alien §. de Extraneis Inst de haer qual dist f ff de donat caus mort l. in mortis de Cond Et demon l. eum qui ff de jur Fisci l. non intelligitur §. quando g Perk. 97. Sect. 505. 9. H. 6. 23. 2. El. 119. Pl. 18. Dyer 13. Eliz. 303. Pl. 46. Dy. 300. Pl. 39. 5. f. 4. 6. per Bil. h Lit. lib. 2. c. 10. Sect. 8. 27. Assis Pl. 60. 24. H. 8. Broo. Devise 34. i Perk. Sect. 505 510. k Perk. 98. Sect. 510. 49. E. 3. 3. l Dyer 303 304. B. R. curia Mich. 3. Jac. m §. incertis inst de Legat. Jo. An. Gem. Franc. in câ—si pater de Test 6. n Cook 6. 68. o L. cum quidam C. de
the very bringing of an Appeal is a suspension of the first Judgement for the principal matter If an Executor dye Intestate Administration ought to be granted of the first Testator for now he is dead Intestate 21 Ed. 4. 24. 26 H. 8. 7. But if an Executor after Administration dye Intestate and the Ordinary grant Administration of all the Goods of the Executor he may Administer the Goods of the first Testator 10 Ed. 4. 1. Quaere if an Administrator doth make an Executor and dies his Executor shall not have the Administration of these Goods but a new Administration ought to be granted of them 34 H. 6. 14. D. 32 H. 8. 47. 11. Co. 5. Brud 9. b. Adjudged And if an Executor before Probate of his Testators Will doth make his Executor and dye the Executors Executor cannot take upon him the Execution of the first Testament but Administration of the first Testators Goods is to be granted cum Testamento annexo D. 22 23 Eliz. 372. 8. CHAP. XXXIV Of Succession in the Right Line Descendent 1. What the Jus Repraesentationis is or that several Children by one Father deceased do Conjunctim represent the Person of that Father 2. That Succession when the Case so requires is to be computed in Stirpes not in Capita 3. That the Grand-Child living the Father succeeds not to the Grand-Father nor by the Civil Law if conceived after his Grand-Fathers death 4. How the Succession according to the Civil Law is in Case of Children not all of them by the self-same Parents and how at Common Law 1. NExt to the Widow this Right of Succession in the Right Line descendent is the first degree of Right to the Administration of an Intestates Goods for they are in the first place admissable to such Administration who are of the Right Line descendent from the deceased So that if a man dye Intestate leaving behind him Children Parents and Collateral Kindred the Children do in the first place Succeed as to the Goods whereof he died Intestate exclusively to the Grand-Children whose Parents are living It is otherwise if their Parents be dead for if a man dye leaving one Son and one or more Grand-Children by another Son deceased these Grand-Children are Admissable together with that living Son their Uncle And this is Jure Repraesentationis whereby several Children of one Father do Conjunctim represent the Person of that Father But yet this must be understood according to the Law-Terms not in Capita but in Stirpes only that is not according to the several Branches or by Poll as we use to say but according to the one Common Root of those several Branches and therefore put all the Grand-children together they can have no greater proportion among them all than singly belonged to their Father were he then alive So that in the foresaid case the Estate is to be divided into Two equal parts whereof one Moity is due to the Son the other Moity to the Grand-children to be equally divided amongst them And this Right or Law of Representation holds in infinitum in the Right Line descendent contrary to the Opinion of the Famous Bartol who held that it reached not beyond the Great Grand-children 2. In like manner if there be divers Grand-children by divers Sons deceased and no Son living they succeed to their Grand-Father in Stirpes not in Capita that is as aforesaid not according to the distinct number of the several Grand-children but according to the number of their Fathers or Sons to the Intestate so that the Grand-children by each deceased Son to the Intestate shall Conjunctim and amongst them all respectively have just that proportion which their respective Fathers or Sons to the Intestate could challenge if they had been alive at the time of the Intestates decease so that Two Grand-children by one Son have no more than one Grand-child by another Son because the Son by whom are the Two Grand-children to the Intestate could have no more than the Son by whom there is but one Grand-child in case both the Sons had been living when the Intestate died Indeed if there be no Grand-children save only by one Son then they succeed equally according to their number unless they be in unequal degree as Grand-children and Great Grand-children And the reason why Succession goes in Stirpes not in Capita is because they succeed not in their own right but in the right of their Ancestor 3. A Grand-child whilst his Father is alive hath not the precedent right to the Administration of the Goods of his Grand-Father dying Intestate nor doth a Grand-child succeed to his Grand-Father unless he be born at least conceived at the time of his Grand-Fathers death So that a Grand-child conceived after his Grand-Fathers death is not in his own person by right of Representation according to the Civil Law Admissable to succeed his Grand-Father And that which hitherto hath been said of Sons and Grand-Sons holds true in Law as to Daughters and Grand-daughters who are equally with the other Admissable to a succession of their Intestate Parents Goods without any distinction of Sex 4. Whereas the Law is That Children shall succeed equally to the Administration of their Intestate Parents Goods this must be understood only of such Children as are begotten of the self-same Parents for if there be Children by divers Parents as if a Woman hath had Two Husbands and one Child by the First Two by the Second In this case each of them respectively succeeds according to the Civil Law only to the Goods of his own Father but all of them equally to their Mothers And this also by the same Law holds true as to the Grand-children by such Children of each marriage respectively Otherwise it is if a man hath had two Wives with Goods and Children by each of them and dye Intestate leaving no Relict or Widow for in this case all the Children by both Wives shall equally succeed to the Goods and Chattels of their Father dying Intestate In the case of a Prohibition granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half blood when there was a Brother of the whole blood who sued for them It was agreed by the Court That it is in the power of the Ordinary to grant Administration either to the Brother of the whole blood or to the Sister of the half blood at his Election because they are in equal degree of Kindred to the Intestate But if Administration be granted to the Husband and Wife where the Husband is not of Kin to the Intestate but a Stranger in such case if he survive his Wife