in Reversion whereof no Entry can be made nor can any man therein be Executor of his own wrong and therefore the first Sale to Burgess before Administration is utterly void At the Kings Bench in Debt all the Justices of England being Assembled at Serjeants Inn it was Adjudged That an Executor of his own wrong cannot pay himself either Debt or Legacy Debt against one as Executor the Defendant pleaded that the deceased died Intestate and that certain of his Goods came to the Defendants hands and that Administration was committed to J. S. to whom he delivered the Goods It was adjudged no Plea in regard he had once made himself chargeable to the Plaintiffs Action as Executor of his own wrong he shall never discharge himself by matter ex post facto Note in an Action of Debt brought against A. as Executor in his own wrong he pleaded ne unque Executor and it was found against him and Execution was awarded against him for the whole debt viz. Sixty pound for his false Plea although in truth he had not intermedled but with one Bedstead of small value and so it was said it was adjudged 40 Eliz. in C. B. in Kitchin and Dixons Case CHAP. IX Of a Child in the Womb made Executor and of an Infant-Executor as also of an Executor and Administrator durante Minoritate 1. Whether the Child in the Womb may be made Executor 2. At what age an Infant-Executor may Administer 3. What Acts may or may not be done by an Infant-Executor 4. To whom the Right of Administration doth belong durante Minoritate 5. Divers Cases Reported in the Law pertinent to this Subject 1. THe Child in the Womb may be made Executor insomuch that when such is so appointed if the Mother bring forth Two or Three Children at that one Burthen they are all to be admitted Executors The Law is also the same as to a Legacy given in like manner which is to be equally divided amongst them 2. Though an Infant how young soever he be may be Executor or unborn as aforesaid yet the Execution of the Will shall not be committed to him until he attain the Age of Seventeen years for Administration granted durante Minoritate ceases when the Infant-Executor attains to that Age of Seventeen years And if it be a Female-Infant and married to a man of Seventeen years of Age or more it is then as if her self were of that Age and her Husband shall have the Execution of the Will and Administration thereof This limitation of Seventeen years comes in by the Canon not by the Common Law 3. Although an Administration granted durante Minoritate doth as aforesaid cease when the Infant-Executor doth attain to the Age of Seventeen years yet betwixt that Age and the Age of Twenty one years such Executor cannot Assent to Legacies howbeit upon satisfaction really made he may release a debt due to the Testator for although his Actings unconformable to the duty and office of an Executor bind him not yet such acts as are conformable to such an office done by him during his Minority that is till he be of the Age of Twenty one years for till then the Common Law holds him a Minor are binding and good in Law 4. Until the said Age of Seventen years the Administration is to be committed to some other as to the Father or to the Guardian or Tutor of the Child who during such Minority cannot sell or alienate save in cases of necessity nor Set a Lease for a longer term than the Executors Minority 5. E. R. Executor of W. R. brought his Action on the Case against T. P. supposing that divers of the Testators Goods came to the Defendants hands c. In which Action the Defendant pleaded a Release from the Plaintiff Whereunto was replyed That the Plaintiff was within Age at the time when he gave such Release and whether such Release was a bar upon a demur in B. R. was the question where it was adjudged that it was a void Release The matter was after removed and brought before the Justices in the Exchequer Chamber by a Writ of Errour where all the Justices of the Common Pleas and the Barons of the Exchequer held That the Judgement in that point was good and that it was no Errour for they said that an Infant-Executor cannot Acquit Release or Discharge a Bond without receiving the money due thereupon otherwise he might through his own folly or ignorance charge himself of his own proper Goods which is not allowable in an Infant to do by a Release or Acquittance without some other Act but if upon a single Bond or Obligation he receive the money and make an Acquittance or Release they held that was good and the Infant should be bound thereby but by other means the Obligation could not be discharged and they all held That when a single Obligation is made to an Infant and he during his Infancy receive the money and make an Acquittance he shall be bound thereby Action is brought against the Defendant as Administrator of J. S. during the Minority of D. Issue joyn'd and found for the Plaintiff It was alledg'd in Arrest of Judgment That the Declaration was not good because non constat whether D. were Seventeen years of Age at the time of the Action commenced at which time the Defendant-Administrators Authority is determined but it was adjudged That the Plaintiff is not to shew or set forth that matter 1. Because the Plaintiff is a stranger to the Defendants power 2. Because the Defendant by joyning issue hath admitted that his power continues Biss makes Katherine his Wife and John his Son aged one year his Executors K. Proves the Will alone and marries the Plaintiff and they without the Son bring Action of Debt as Executors against the Defendant who pleaded in abatement of the Writ that John was made Executor with Katherine and that he was yet alive not named c. The Plaintiff replyed That John was not above one year of Age that Katherine had Proved the Will and had Administration committed to her during his minority c. Whereupon Yelv. demurr'd and adjudg'd for the Defendant quod Billa cassetur for that in truth they are both Executors and ought to be named in the Action and albeit that Katherine by the Administration committed to her durante Minori aetate hath the full power yet the Infant ought to be named for that she hath affirmed him to be an Executor Debt as Administrator to A. L. durante minori aetate W. L. the Executor upon an Obligation and averrs that W. L. was within the Age of Twenty one years The Defendant pleaded an ill Bar and it was thereupon demurr'd but because the Court was resolved upon Conference with divers Civilians openly in Court That the power of an Administrator durante minori aetate doth cease at the
there is then another Executor of right against whom the Creditors may bring their Action and such wrongful intermedlers with the Goods when there is another Executor of right are liable to be Sued by him as Trespassers Also if a man perform only acts of Charity or of Humanity as feeding the Testators Cattle or preserve them by taking them into his custody or dispose of them only about the Funerals or make an Inventory thereof or deliver the Widow only her convenient Apparel or as a meer Trespasser entereth to his Goods whether quick or dead converting the same to his own not to the Testators use he doth not hereby become Executor in his own wrong when there is an Executor or Administrator of right But if one deliver to the Widow more of her Apparel than is convenient to her degree or if she take or another deliver to her more than such he or she thereby becomes Executor in their own wrong But if a man lodge in my house and die there leaving Goods therein behind him I may keep them until I can be lawfully discharged of them without making my self chargeable as Executor in my own wrong Or if I take the deceased's Goods by a mistake supposing them to be my own or under colour of a Title this will not make me Executor in my own wrong Or if one do but take a Horse of the deceased's and tie him in his own Stable this makes him not Executor in his own wrong Or if I do only lay up the Goods of the deceased to preserve them in safety for him that shall have right to them This will make me no more chargeable than if I took an Inventory of all the deceased's Goods Nor is an Executor in his own wrong chargeable as such where an Executor of right or Administrator hath fully Administred the deceased's Goods Nor shall any light acts or intermedlings make one an Executor in his own wrong where there is a rightful Executor and a Will by him Proved or Administration committed or where there is another of right to be sued for whoso wrongfully takes the deceased's Goods from the rightful Executor or Administrator makes himself not an Executor but a Trespasser to them though it would have made him an Executor in his own wrong had there not been an Executor by right who notwithstanding the other stands charged with and is liable for the debts of the Testator 4. Whosoever feareth to be adjudged Executor in his own wrong his safest course is not to meddle at all but utterly to abstain from all manner of use of the deceased's Goods and especially let him take heed that he do not sell any of the deceased's Goods nor receive any of his debts nor kill any of his Cattle And if one after wrongful Administration of some of the deceased's Goods take Administration and after such Administration taken be sued by a Creditor for a Debt as Administrator and after such wrongful Administration there remain not Goods sufficient to pay that debt the Creditor can recover no more than remained after such rightful Administration taken because he sued him as Administrator therefore he should in such case have sued him as Executor because he was Executor in his own wrong before he took Letters of Administration and so then the Goods which were Administred before the taking such Letters of Administration must thereby be included to be liable for the debt due to the Creditor otherwise not Therefore Creditors must look before they sue for else they know not whether he so intermedling be Executor or Administrator nor consequently how to found their Action aright and safely for good success since a sute against an Executor as Administrator or against an Administrator as Executor will prove frivolous one Errour in a Foundation may be the Foundation of many in the Superstructure 5. A. brought debt upon an Obligation of forty pound against L. as Executor of P. The Defendant pleaded That P. in his life time was indebted to him in forty pound and that there came to his the Defendants hands Goods to the value but of ten pound which he retained towards satisfaction of his own debt and averr'd that no other goods beyond that value of ten pound came to his hands to be Administred c. The Plaintiff replyed and shewed That the Defendant is Executor in his own wrong to P. and that he hath much other goods belonging to P. to be Administred at S. in the County of N. conclude hoc paratus est verificare c. The Defendant rejoyn'd and demanded Judgement whether the Plaintiff shall be admitted to Plead That the Defendant is Executor in his own wrong inasmuch as himself hath by his Declaration affirmed him to be Executor Testamenti upon which the Plaintiff demurr'd in Law To which point in Law the whole Court would hear the Plaintiff for he could well Reply That the Defendant notwithstanding the Declaration is Executor in his own wrong for there is no other Form de Court as was adjudged in Coulters Case But per tot curiam the whole Plea is discontinued for the Defendant having Pleaded that as to the goods to the value of ten pound he had retained them for debt to himself and that he had no more goods to be Administred it was an Offer of a good issue and then when the Plaintiff replyed that he had other goods c. conclude hoc paratus est verificare it is not good for he ought to have said hoc petit quod inquiratur per patriam for that there was any surplusage of goods when denyed by the Defendant and urged by the Plaintiff he ought to have come to an issue but could not by reason of the ill conclusion And in the same Term between Weast Plaintiff and Lane the same Defendant where Weast demanded four pound debt against Lane as Executor ut supra and all the rest of the Plea was ut supra Judgement was given for the Plaintiff because the Defendant had confess'd goods to the value of ten pound in his hands which is more than the debt in demand and therefore it being in the judgement of the Law That an Executor in his own wrong cannot retain to pay himself Judgement shall be given only upon the Defendants own confession and so it was Quod nota Yelv. a Counsel pro Quaerent Debt against the Defendant as Executor of J. S. he pleads that he had taken Letters of Administration Judgement of the Writ c. The Plaintiff replyed that the Defendant Administred de son tort and after took Letters of Administration Judgement c. And upon this it was demurr'd Godfrey for the Defendant argued That now the name of Executor is lawfully changed before the Action brought and therefore is to be sued by his new name as Administrator 9 Ed. 4. 33. 21 H. 6. 5. 18 H. 6.
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
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
or imployed for the Intestates use it is reasonable that he should be charged for them Popham and Fenner è contra For the Administrator hath an absolute interest and power to dispose of the Goods untill the Repeal be made and it is not like unto an Appeal upon a Sentence for that makes it as no Sentence but the Repeal of the Letters of Administration doth not void it ab initio and make a lawful Act Tortious but rather in this Case the new Administrator shall have an account for the money received and the words in the Sentence are not to be regarded for they are common and ordinary in all Sentences So he having the Goods lawfully and converting them lawfully shall not answer for them as for a Tort done And Popham here said If Administration being committed the Ordinary commit new Administration it is a Repeal of the former without any Sentence of Appeal and if the first Administrator wast the Goods the Debtee shall have the Action against him and if he pleads that Administration is committed over he may well by this Replication maintain it because he wasted the Goods when he was Administrator wherefore c. Et Adjournatur but afterwards the Action was discontinued by the Plaintiff Debt against one as Administrator to N. upon an Obligation the Defendant shews the Custome of London to be That if a Contract be made by a Citizen to pay money to another Citizen and he who made the Contract dies that his Executors or Administrators shall be chargeable therewith as if it were upon an Obligation and shews further how the Intestate was indebted upon a Contract to A. who had Recovered against him and that he had Riens ouster en ses maines c. And it was thereupon demurred Glanvile moved that this Custome was not good For 1. it is against Law That an Executor or Administrator should be charged upon a simple Contract wherefore c. Daniel è contra The Custome was alwayes to bind the Executors or Administrators to pay Debts upon Contracts and Customes in London are confirm'd by Parliament and are now as strong as a Statute and therefore in London they prescribe to give Land in Mortmaine which is against Statute Law and there is not any Custome but that it deprives and is against the Common Law in some point And this Custome is reasonable for a Debt upon a Contract is as well due as a debt upon an Obligation and therefore there is as great reason for the payment of the one as of the other although the Law hath given a greater Prerogative viz. a Priority of paying the one rather than to the other c. Owen Justice The Custome is reasonable for the Executor in Conscience is bound to pay Debt upon a Contract as well as upon a Specialty and such a matter was about four years since in this Court but not adjudged And of that Opinion were the other Justices especially as this Case is being executed against him who is liable and chargeable by the Customes of London Adjudged per totam Curiam That where an Executor is Plaintiff for any thing touching the Testament and is Non-suite or Verdict pass against him he shall not pay Costs by the Statute of 4 Jac. For the Statute ought to have a reasonable intendment and no default can be presumed in the Executor who complains because it concerns other mens Fact whereof he can have no perfect knowledge and so it was resolved and adjudged by all the Justices of the Common Pleas. Quod Nota. A Judgement establish'd by both Courts contrary to some few Presidents which were in B. R. to the contrary Quod Nota. CHAP. XXIV Of Assets charging Executors or not 1. What Assets are and the several qualifications thereof 2. Whether Dammages recovered by an Executor be Assets 3. Mortgages redeemed by the Executor and Chattels reverting to him upon failure of some Condition by the Legatary to be performed are Assets in his hands 4. Encrease gotten to Executors by Merchandizing with the Testators Goods and other things never in the Testators possession are Assets in the Executors 5. Debts due to the Testator are no Assets in the Executor till recovered or released by him 6. Whether Land devised to be sold for payment of Debts and Legacies be Assets 7. An Executor dying indebted and leaving to his Executor such Goods as he had as Executor These are not Assets in such Executors Executor lyable to the last Testators Debts 8. Whether an Advowson be Assets 9. How real Chattels may turn into Personal Assets 10. In what Case a Debtee-Executor may retain Money or Goods of the Testators which shall not be held Assets as to other Creditors 11. Other mens Goods in the Testators possession at his death shall not be Assets in the Executors hands 12. Executors discharged of Assets as to so much as they pay of the Testators Debts with their own Money or Goods 13. Certain Law-Cases touching Assets 1. ASsets are where one indebted dieth Testate or Intestate and his Executor or Administrator hath sufficient in Goods or Chattels or other Profits to pay the deceaseds debts or part thereof and for so much he shall be charged So that all such Goods Chattels and Actions which did belong to the deceased in right of Action or Possession as his own and so continued to the time of his decease and which after his death the Executor or Administrator doth get into his hands as of right of his Executorship or Administration and all such things as accrew to the Executor or Administrator by reason thereof and nothing else shall be Assets in their hands to oblige them in Law as chargeable to the deceaseds Creditors or Legataries So that all things valuable may be Assets but such things as are not valuable are not Assets Note that Assets in the hand of any one of the Co-Executors shall be understood as Assets in the hands of all the Executors be it in any County or place whatsoever All the Testators Goods and Chattels in Action or in possibility at his death and afterwards recovered by his Executors are Assets in their hands but not till recovered and come into their possession therefore Debts of any kind whatsoever due to the deceased are not Assets in his Executors or Administrators hands to charge them until they be Recovered But whatever an Executor or Administrator must Sue for by or under that Name or Appellation is being Recovered Assets in his hands Yea notwithstanding an Executor or Administrator doth purchase the Fee-Simple of that Land whereof he had a Lease for years in right of the deceased whereby the Lease is drowned yet the said Lease shall still continue to be Assets in his hands Or if Executors do sell the Goods of Testators and buy them again they remain as Assets in their hands because they are the same Goods which were the Testators If a man hath a
or Legatee but as Executrix by reason of these words viz. for the payment of his debts and for the wealth of his Soul And the Justices held That all works of Charity were within the Intent CHAP. XXVI Of a Devastavit or Wast in an Executor or Administrator 1. What a Devastavit or Wast is and in what Case the Writ of Devastaverunt doth lye 2. How many wayes a Devastavit or Wast may be committed 3. An Executor or Administrator in a Devastavit or Wast is chargeable de bonis Propriis 4. What Acts do not amount to a Wast also a Wast committed by one Co-Executor shall not charge another 5. The manner of Proceedings against Executors or Administrators in case of a Devastavit 1. A Devastavit or Wast in the Executor or Administrator is when he doth mis-administer the Goods and Chattels of the deceased or mis-manage that Trust which is reposed in him either by the Testator as to the Executor or by the Law as to the Administrator and therefore the Writ of Devastaverunt bona Testatoris lyeth against Executors for paying Legacies or Debts without Specialties to the prejudice of Creditors that have Specialties before the debts upon the said Specialties be due For in this Case the Executors are as lyable to an Action as if they had wasted the Goods of the Testator riotously or without cause Likewise the said Writ lyeth against Executors or Administrators when they deliver the Legacies given by the Testator or make Restitution for wrongs done by him or pay his debts due upon Contracts or other debts upon Specialties whose dayes of payment are not yet come c. and keep not sufficient in their hands to discharge those Debts upon Record or Specialties which they are compellable formerly by Law to satisfie or do deviate from that method or order enjoyned Executors by the Law in the payment of Debts and Legacies In such Cases they shall be constrained to pay of their own Goods those Duties which at the first by the Law they were compellable to pay according to the value of that which they delivered or paid by compulsion for such payment of Debts or delivery of Legacies as is aforesaid before Debts upon Record or Specialties whose dayes of payment are already come are accounted in the Law a wasting of the Goods of the deceased as much as if they had given them away without cause or sold them and converted them to their own use 2. From the Premises it is evident that a Devastavit or Wast may be committed several wayes more particularly thus viz. When more is expended about the Funerals of the deceased with respect had to his Estate and degree than is meet and fit when Executors pay Legacies in money or assent to Legacies given in other things before the Debts are paid not reserving sufficient to pay the Debts also when the Debts are not paid in that order and manner as the Law requires but payment is made of that first which should be paid last when there is not sufficient to pay all when the Executor gives a Release of a Debt or Duty due to the deceased before his Receit thereof when he Releases an Action whereby he might recover the deceaseds Goods or the value thereof when he sells the deceaseds Goods much under value specially if in a fraudulent way as to his near friends to his own use or to have money under hand or the like But be the appreyzment what it will and let the Testator sell for what he will he shall stand chargeable to the best and utmost value towards the Creditors but a Sheriffs sale of the Testators Goods upon an Execution at an under-value is no wast in the Executor If an Executor upon a Bond of Two hundred pound forfeited for non-payment of One hundred pound accept the Principal or Cost or Dammage and give a Release or Acquittance of the whole forfeited Bond or of all Actions or upon Record acknowledge satisfaction upon Judgement had this shall be a Devastavit or Wasting of so much as the penal summ is more than is received by him and so far his own Goods stand lyable to Creditors not satisfied And so doubtless is it if he do but give up the Bond having no Judgement upon it though he neither make a Release nor acknowledge satisfaction The Law is the same in Case of releasing of Trespasses or other causes of Action As if one take away Goods from the Testator or his Executor and he give a Release this is a Wast and makes his own Goods lyable Yet on the other side if an Executor by payment of Two hundred and forty pound or thereabouts get in a forfeited Bond of Five hundred pound it shall be an Administration but of Two hundred and forty pound or of no more than he really paid Also the Executors verbal agreement to require or sue for no more or his giving a Receit for so much as he hath received or delivering of the Bond into a Friends hands or into a Court of Equity by way of Security to the Debtor that he shall not be sued for more is no Devastation or Wast since that the rest in Law still remains as due and suable And upon the Issue of Plenè Administravit the Jury is to find whether the Executor hath Assets or not and not whether a Devastation for that must come in by the Sheriffs Return upon the Fieri Facias Again the Executors submitting to Arbitrement matters of Debt or Duty due to the Testator or touching his Goods taken away is another way of discharging dangerous to Executors for if it happen that by the Arbitrators Award the Trespassers or Debtors be discharged without full Recompence made the rest of the value will subject the Executors to the Creditors because it was their own voluntary act to submit to Arbitrators Or if an Executor allow a Writ to suffer Judgement to be had against him upon a Writ which is abatable he shall not have allowance of that but this shall be Return'd as a Devastavit Yea if money be paid by an Executor upon an usurious Contract it is a Devastavit And it was held by the Lord Hobard That if an Executor pay a Bond made upon an usurious Contract it shall be a Devastavit or Wast in the Executor 3. These and the like Acts are said to be a Devastavit or Wast in the Executor or Administrator which being discovered against him by the Sheriffs Return will charge him de bonis Propriis for so much as he hath so mis-administred insomuch that any Creditor may charge him for the Debt due to him from the Testator as for his own proper Debt and for so much Execution shall be made against him upon his own Body Lands and Goods Yea the Husband shall be charged in a Devastavit for the Wast of himself or his Wife where she is an Executrix whilst
Anne she shall have both And this is the Common opinion from which notwithstanding there are not wanting and they not of the minor DD. who recede in their Judgments and held That a Disjunctive in a Legacy ought to retain its force so as the Executor may be least burdened which seems nothing inferiour to Reason in an impartial ballance yet this may be relyed on as indubitable that where the Disjunctive is placed between two such things as are commonly conceived under the notions of Genus and Species or between the whole and his part then and in such case it shall be taken for a Conjunctive as if the Testator should say I bequeath to my Wife my Plate Jewels or such things as I provided for her the latter words whereof are Generical the former Specifical she shall have both Or if he saith I bequeath to my Wife my Wine which is in the City or in the Port the Port is held as part of the City and she shall have the Wine in both Likewise if any thing be bequeathed to D. E. or F. G. here in this case also the word or shall be taken for the Copulative and so that both of them shall equally take by this Devise unless the one be of nearer kin to the Testator than the other in which case the nearest of kin shall have it for his life the other afterwards or unless it can be proved that the Testator did bear more affection to the one than to the other in which case he to whom the Testator did bear most affection shall be preferred or unless the one of them is not legally capable of the Legacy in which case the word or shall stand as properly it is for a Disjunctive One Devised his Lands to his three Daughters and said further in these words viz. I will that every of them be others Heir by equal portions Whereupon it was doubted when one of them dyed whether the others should hold by survivorship as Joynt-Tenants Or in this case as Tenants in Common The whole Court was of opinion for the latter and not as Joynt-Tenants for that it appear'd the intention of the Donor was such in saying That each should be others Heir by equal portions which could not be if there were a survivor for thereby it is not possible the words of the Will can be of any force Although properly Houses pass not by the name of the Lands yet in a Devise they shall pass by the Name of all the Lands if the intendment be not otherwise by some Expressions of the Devisor for though in a Writ nothing shall be demanded or recovered but according to its proper signification yet in Wills Expressions shall be taken according to the Common intendment Wherefore in a Will by the Devise of his Land all his Houses may pass or not according as it is phrased by the Devisor For if a man Devise all his Lands his Houses shall pass but if he restrain the word Land according to its genuine propriety as Arable Land or doth couple it with Meadow and Pasture in such case the exposition of the word shall be taken according to the common intendment of the Devisor or having both Houses and Lands in A. and B. doth say I bequeath to C. all my Houses and Lands in A. And to D. all my Lands in B. In such case and by such expression the Devisor seems to exclude the Houses in B. out of the Devise to D. which expresly he includes in the Devise to C. Moore succinctly Reports the case thus viz. Debt for Rent the Defendant pleaded nihil debet Whereupon it was found That J. S. being seised of three Houses and other Lands Pastures and Meadows in Watford in the County of Hertford as also of a House and Land in the County of Oxford Devised the same in this manner viz I give all my Capital Messuage in the County of Oxon and all other my Lands and Meadows and Pasture in the Parish of Watford The Devisee brought Debt against the Lessee for years of the Houses in Watford And it was adjudged Maintainable because the word Land comprehends Houses and the Houses shall pass by the Devise CHAP. XX. Cases in the Law touching Legacies of Chattels Personal 1. CHattels Personal may be bequeathed to one for life and afterwards to another in which case the first hath only the use or occupation the other hath only the Propriety thereof So that if one Will that A. B. shall enjoy the use of his Houshold-stuff during his life and after that it shall remain to J. M. This is a good Devise thereof to J. M. But if the thing it self be bequeathed to the first of them then it is otherwise for the gift of a Chattel Personal though but for one hour is the gift thereof for ever Provided the Testator make it Absolute not Conditional 2. Chattels Personal do pass under the legal Notion of Moveables as Chattels Real do under that of Immoveables of both which the Law makes a Distinction into Creatures Living and Things inanimate albeit of the living Chattels Real there can but very few instances be given Such was Wardship in respect of the Tenure of Land As also Villenage for years or that right which the Lord had in the Villain only for a Term who resembled him whom the Civil Law terms Ascriptitius Glebae or one in perpetual Obligation to the Plow on some certain Lands The Real Chattels Inanimate chiefly consist in Houses or Lands or the issues thereof as by Lease for years or by Extent upon Judgments Statutes or Recognizances Or if the Testator had a Term of years in certain Advowsons Tythes Profits of Fairs Markets or Court Leets the Interest is a Real Chattel among the things inanimate likewise a Presentation to a Church upon the next avoidance and before it come to be void is a Real Chattel But of this and Chattels Personal with their respective Individuals the Reader may have a more exact Description if he hath a retrospect to Cap. 6. Par. 3. whereunto he is referred for clearer satisfaction 3. A. B. having two Brothers and one Son makes his Son his Executor and in his Will saith That he would have his Son let the said two Brothers who are the Sons Uncles have all the goods he hath in D. and M. or elsewhere saying withall That all these things he doth leave them for this Reason because he would not that his Son should have any Difference or Controversie with them In this case and by this Devise A. B. seems to leave his two Brothers only what was in common between him and them and no more This interpretation being grounded on the Reason annexed at the close of the Testators words where he saith Because his Son should have no difference or Controversie with them by which Reason he seems to have a prospect of Differences like to arise between him and
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 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