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
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
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
his Suit is in anothers right viz. the Testators But he that is Excommunicate cannot proceed in Sute as Executor yet this Excommunication pleaded doth not abate or overthrow the Sute but makes that the Defendant may stay from answering his Sute until the Plaintiff be absolved and discharged from his Excommunication 5. Although one Co-Executor cannot Sue another for possession of the Testators Goods for that many Executors to the same Testator are but as one man and no man can Sue himself So that when the Testator doth make divers Executors if any one of them doth get the Goods or the possession of the Goods of the Testator the other Executor hath no Action for recovery of the same Goods or any part thereof for the said Reason that one Co-Executor cannot Sue another nevertheless if the Testator make divers Executors and do bequeath to the one of them the residue of his Goods it is not only lawful for him to whom they are so bequeathed to retain the same but also if the other Executor enter thereunto he is subject to an Action of Trespass Also if the Executor of a Co-Executor have any Goods belonging to the first Testator the other surviving Co-Executor of the first Testator may have an Action against the Executor of that deceased Co-Executor for the same Also if there be Two Administrations granted together he that is the rightful Executor or Administrator may Sue the wrongful Administrator for the Goods in his custody 6. Executors may not Sue for the Goods of their Testators in the Court Ecclesiastical but at the Common Law Yet in some Cases an Executor may Sue in the Ecclesiastical Court as touching his Testators Goods as when a man bequeathes Corn growing or Goods unto one and a stranger will not suffer the Executor to perform the Testament for this Legacy he may Sue the Stranger in the Ecclesiastical Court But if a man take from an Executor Goods bequeathed for this the Executor must Sue his Action of Trespass and not Sue in the Ecclesiastical Court Also Tenants may be Sued but at the Common Law by Executors or Administrators for Rents behind and due to the Testator in his life-time or at the time of his death and may for the same distrain the Land charged with the Rent 7. A Woman and another person were made Executors the Woman took Husband who did not alter the property of the Goods of the Testator and then the Wife died it was adjudged That the other Executor might have an Action of Detinue against the Husband for the same Goods Debt brought by an Executor as due to his Testator and Judgment given for him but before Execution the Plaintiff died Intestate and the Ordinary committed Administration of the Goods of the first Testator to another who Sued out a Scire Facias on the Judgement All the Justices agreed That the Scire Facias did not lye For that when the Executor died Intestate the Testator was dead Intestate also whereby the Judgement and Recovery was void Detinue brought by an Executrix against her own Husbands Executor the Case was this One Falconer who was the Plaintiffs first Husband made his Will gave divers Legacies and towards the end of his said Will said The Residue of all my Goods I Give and Bequeath to Frances my Wife whom I make my full and whole Executrix of this my Last Will and Testament to dispose for the wealth of my Soul and to pay my Debts and died indebted to divers persons to whom the said Frances paid the said Debts and all the Legacies having then Goods in her hand for which this Action was now brought she having after married one John Hunks who made the Defendant his Executor to whose hands the said Goods came Whereupon the Court demurred and Judgement was that the Plaintiff should recover for notwithstanding the Devise viz. of the Residue as aforesaid she hath them not as a Devisee but as Executrix because the words of the Devise can have no other intendment than that she should enjoy them as Executrix Debt brought by the Executrix of J. T. against W. B. The Case was this The said W. B. caused a Writing to be made and sealed which he delivered to V. C. to deliver to J. T. as his Act and Deed Accordingly the said V. C. offered the same to the said J. T. as the Act and Deed of the said W. B. But he utterly refused to receive the same as such notwithstanding which the said V. C. there left the said writing which matter the Defendant pleaded and said it was none of his Act whereupon was a demur and Judgement given for the Plaintiff Debt upon an Obligation Conditioned That if the Defendant in Michael Term then next ensuing in the Prerogative Court of the Arch-Bishop of Canterbury at London should give to D. his Executors or Administrators such a Release and Discharge from and against him and his Children for the receipt of One Hundred Marks as by the Judge of the Court should be thought meet That then c. The Defendant pleaded that the same Term one S. was Judge there and that the said Judge did not Devise or Appoint any Release or Discharge c. And it was thereupon demurred and adjudged to be no Plea For that it is not alleadged that he caused a Release to be drawn and tendered to the Judge to be allowed for it is on his part in discharge of his Obligation to draw such a Release as the Judge should allow Wherefore it was adjudged for the Plaintiff 5. Co. 23. b. Mich. 43 44. C. B. Pl. 42. Debt as Administrator to B. upon an Obligation The Defendant pleaded That the Plaintiff was an Alien under the Obedience of Philip King of Spain Enemies to our Soveraign the Queen and demands Judgement whether he should be Answered and it was demurred thereupon and adjudged that he should Answer Assumpsit By an Executor of a Promise made to his Testator The Defendant pleads non Assumpsit and found for the Plaintiff and Judgement for him And Errour was thereof brought and Assigned because he did not shew in Court the Testament in the Declaration mentioned Whereunto it was said That it was but default of Form which is aided after Verdict but all the Court held it to be matter of substance for otherwise he doth not entitle himself to the Action without shewing the Testament For which cause it was Reversed Debt upon a Special Verdict the Case was A Parson made a Lease for years rendring Rent at Michaelmas or within a moneth next after The Lessee Enters the Lessor dies within ten dayes after Michaelmas Whether his Executor hath any remedy for this Rent was the Question and Ruled that he had not for the Rent was not due in the Testators time nor until the end of the moneth And in such Case it hath been adjudged that such
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
Son to his Mother 10. A man bequeaths the House wherein he lives to A. B. his Wife quamdiu she shall continue a Widdow and dyes A. B. doth not Re-marry but lives and dyes a Widdow In this case the said House by the Civil Law comes to A. B. and his Heirs for ever Note that what in the premises hath been said touching the invallidity of Conditions against Marriage annexed to Legacies in relation to Females holds the same in Law touching the like illegal Conditions in reference to Males or Masculines 11. A man Devised to his Daughter 500 l. towards her Marriage In this Case it was the Opinion of the Court That if she die before Marriage her Executors shall have it But if the words were To be paid at the day of her Marriage or at the age of 21 years and she dyeth before both it is otherwise The latter part of which Judgment seems not to agree with the Civil Law in that point which sayes the time of the age of a Legatary may be joyned either to the substance of the Legacy or to the execution and performance of the same if the time of the age of the Legatary be joyned to the substance of the Legacy as when the Testator doth give thee 100 l. when thou shalt be of the age of 21 years In this case if thou dyest before that time thy Executors cannot recover the 100 l. But if the time of the age of the Legatary be joyned only to the execution or performance of the Legacy as when the Testator doth give thee 100 l. which he willeth shall be paid when thou accomplish the age of 21 years In this case although thou dye before thou accomplish the age of 21 years yet thy Executors or Administrators shall recover the same when the time is accomplished wherein thy self if thou hadst been then living mightst have recovered the same 12. Consonant whereunto is that which we find Reported viz. That it was agreed by the Court That if a man Deviseth to his Daughter 100 l. when she shall be Married or to his Son when he shall be of full age and they dye before the time appointed and make Executors their Executors shall not have it But it is otherwise if the Devise were to them to be paid at their full ages and they dye before that time and make Executors there the Executors shall have it Which difference was since likewise so Agreed and Adjudged 13. A Feme Sole Deviseth Lands to A. B. in Fee to whom afterwards she was Married and during the Coverture Countermands her Will saying her Husband should not have the Land nor any other benefit by her Will and dyes In this case the Husband shall not have the Land not only because of her Countermand but because of the disability of a Feme Covert to make a Will which takes no effect till the parties death And therefore if a Feme sole Deviseth Lands to a man and then takes him to Husband and dyes This Inter-marriage is a reversion of the Devise and the Heir of the Woman shall have the Lands and not the Husband because after Marriage the Will of the Wife in Judgment of Law is subject to the Will of her Husband and a Feme Covert hath not any Will for the making of the Will is but the Inception thereof and takes no effect till the death of the Devisor 14. If a man Deviseth Lands generally to his Wife for the Term of her life It cannot be averred to be for the Joynture of the Wife and in satisfaction of her Dower But if a man Deviseth Lands to his Wife for life or in tail for her Joynture and in satisfaction of her Dower the same is a good Joynture within the Stat. of 27 H. 8. 15. A man Devised the Moiety of his Goods to his Wife and dyed It was the opinion of the Court That she should have the Moiety of them as they were at the time of his death if his Executors had Assets sufficient to pay his Debts If a Legacy be given to a Woman Covert and her Husband give a Release and afterwards he and his Wife sue in the Ecclesiastical Court for the Legacy the party sued shall not have a Prohibition upon the Husbands Release because the Temporal Judges cannot meddle with a Legacy nor consequently determine whether the Release will extinguish the same As the Case 29 Eliz. Adjudged The Husband may Devise to his Wife although they are but one person in Law for it takes no effect till after his Death CHAP. XVIII Of Legacies and Devices to a Child in the Womb. 1. A Devise to an Infant in the Womb is good 2. It may be good though the Infant be rip'd alive out of the Womb. 3. It is good though it be a Devise in Remainder or in Tail 4. How the Divident of a Devise shall be in case of Twins unexpected or an Hermophrodite 5. How the Legacy shall be apportioned when bequeathed to any Child in the Womb and more then One or Two happen to be Born 6. Where a Devise void or voidable in his Inception may become good by matter ex post facto 1. THat a Child in the Womb to whom a Legacy is bequeathed or Lands Divised is after his or her Birth though subsequent to the Testators death capable of taking by such Devise is a Truth now not to be controverted though it hath been Contradicted and otherwise Resolved for we find it Reported in a Case thus stated viz. A Man had Issue Five Sons his Wife being with Child with the Sixth at the time of his death and by his last Will declared That the Third Part of his Land should descend and come to his Son and Heir the other Two Parts he bequeathed to his Four Younger Sons by Name and to the Heirs Males of their Bodies and if the Infant in the Mothers Womb be a Son then he to have a Fifth Part as Co-heir with his Four Elder Brothers The Sixth Son was Born after the death of his Father in this Case it was Resolved That the Son Born after the death of the Father should not have any thing because he was uncapable as a Purchasor when the Devise was first to take effect because he was not then in esse or rerum natura Notwithstanding which it was not long after in another Case otherwise understood in which Case it was Admitted That a Devise to an Infant in his Mothers Belly was good It is presumed the intendment is of such an Infant as was born after the Testators death In other Cases also it hath been held That Devise to an Infant in his Mothers Belly is good 2. A Man Deviseth his Land to his Wife being with Child the Remainder to the Issue en ventre safeme his Wife in Travail dyeth and the Son is rip'd from his Mother alive he shall have the said Remainder
an Account against B. as Receiver of the monies of the said J. S. upon Ne unque Receiver pleaded It was found for the Plaintiff and Judgment given that he should Account and being in Custody upon a Capias ad Computandum he was found in Arrearages and his body taken in Execution Afterwards the Will was made void in the Ecclesiastical Court for that the said J. S. was an Ideot from his birth which being certified by Writ into the Chancery and thence by Mittimus into B. R. an Audita Querela was brought by B. setting forth all the said matter whereupon the Court demurr'd It was said by Cook That in 35 H. 8. It had been Adjudged That in that Case the Audita Querela did well Lie The Marquess of Winchester by his Will in writing as supposed Devised divers Mannors to his Reputed Sons Devising further that they should sell divers Mannors and also bequeathed Plate and other Legacies to them This Will was assayed to be Proved in the Prerogative Court but it appearing by circumstances the said Marquess to be Non compos mentis at the time when the supposed Will was made it was moved for a Prohibition in B. R. because a Will touching Lands and a Will concerning Goods were both mixt together and that in Case they should there proceed as to the Goods the same would prevent the Tryal in the Kings Bench where a Will for Land shall be Tryed for which Reason a Prohibition in that Case was generally awarded 2. In that Case it was resolved That a Testator at the making of his Will ought to be of a memory not only to answer to ordinary and familiar questions but also to have a disposing memory so as to be able to make a disposition of his Lands with Reason and Understanding and that That is such a memory which the Law calls Sanae Memoriae CHAP. IX Of Persons Intestable for want of Freedom or Liberty 1. Of Villaines 2. Of Captives 3. Of Prisoners 1. VIllaines are Intestable if their Lord by Entry and Seizing take and enjoy all their Lands and Goods otherwise their Wills are not void but by such Entry and Seizing before Probate they become voidable Except of such Goods whereof such Villains were Executors to others for of such Goods they may not only make their Wills but also maintain actions even against their Lords in case they should take from them such goods as they have by Executorship But of this there is little or no use with us now here in England as in former times 2. A Captive during the time of his Captivity cannot make a Testament yea though he afterwards make an escape yet the Testament made during the Captivity is void but if it were made before his Captivity then after his escape or enlargement it shall be as good in Law as if he had not been Captive at all Likewise he that is alive and in Captivity for the upholding of his Will which he made in his Liberty is feigned by a Legal fiction to be dead the hour before he became Captive so that if he dye in Captivity yet is his Testament so made before his Captivity allowed and his Executor shall have all his Goods as if he had died the day before his Captivity Likewise if any person be taken by a Pirate Turk Infidel or Christian with whom open War is not proclaimed he so taken remaineth a Freeman in construction of Law as to Testability notwithstanding such Capture and therefore his Testament made during such restraint shall be good 3. Persons condemn'd to perpetual Imprisonment cannot make a Testament But a person imprisoned only for debt or the like is not thereby disabled to make his Testament or is his Testament void except it be made in the favour of him at whose Suit the Testator is imprisoned on purpose to extort the same from him CHAP. X. Of Women Covert 1. Women Covert Intestable as to Lands 2. They are Intestable as to Goods without the Husbands License 3. They are Testable as to Chattels by Executrixship 4. They are Testable as to things meerly in action whereof they were not possessed during Coverture 5. Whether they may accept Executrixship without their Husbands consent or the Husband Administer in case of their refusal thereof 6. Cases in the Law concerning this Subject 1. THat Women Covert are Intestable for want of Freedome is not such a general Rule in Law as to exclude all exceptions It is true a married woman cannot make her Testament of any Lands Tenements or Hereditaments specially she cannot devise the same to her Husband though she were not thereto constrain'd by him but would do it of her own accord freely and voluntarily and though such Testament were made before her Marriage with such Legatary-husband And albeit the Wife survive the Husband yet the Testament made during Coverture is not good But yet if after her Husbands death she approve and confirm such Testament made under Coverture then this new Consent or new Declaration of her Will makes the Devise good Also if the Testament were made before Marriage and she out-live her Husband it shall be good Also where power of selling the Testators Land is given to a Wife-Executrix there she may sell even to her own Husband or to whom she please 2. Of Goods and Chattels the Wife cannot make her Testament without her Husbands License for all the Goods and Chattels which the Wife had at the time of marriage and all the Chattels real if he survive the Wife belong unto the Husband by vertue of the said marriage Yet by the Husbands License she may make her Testament even of his Goods yea though the Husband understand not of his Wifes Will yet if after Probate thereof made by the Executors he deliver them the Goods therein Devised he thereby ratifies the Testament though he were not privy to the making thereof for the Goods being once delivered by him according to the tenour of the Will it is then too late for him to revoke the same Otherwise notwithstanding his License given her to make a Will of his Goods he may revoke the same at any time before the Probate thereof Or otherwise having made her Will by her Husbands License he may chuse whether he will suffer it to be Proved for his Consent is necessary as well to the Approbation as to the first making thereof And this extends also to the Goods which she had in her own right before marriage for thereby immediately all Chattels personal and Goods moveable are so devested out of her into her Husband that although she survive him yet they return not to her again but go to her Husbands Executor or Administrator 3. Touching Goods which she hath as Executrix to another the Case is otherwise for such do whether she or her Husband
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
from the deceased 4. If an Executor Sued do plead that he never was Executor nor Administred as Executor for that must be added then if Issue be taken upon this Plea and it be found against him the Plaintiff shall have Judgement to Recover not Dammages only but the Debt it self out of the proper Goods of the Executor if none of the Testators can be found Likewise as it is frequent in use for Executors to pay the Testators Debt with their own monies and to make themselves satisfaction out of the Testators Goods So it is most equal that Executors should with their own money discharge the Arrerages of Rent of those Leases the Profits whereof themselves enjoy by vertue of the Testators Will Therefore where an Executor is sued for Rent behind after the Testators death upon a Lease for years made to the Testator and by him left to the Executor here it shall be adjudged and levied upon the Executors own Goods for that so much of the profits as the Rent amounted unto shall be accounted as his own Goods and not his Testators Again if Executors plead Plene Administra and it be found for them and after that certain Goods of the Testator come to their hands in this Case if he which brought the first Action of Debt bring the same against them again the Action is well maintainable It is also to be remembred That the value upon an Appreyzment in an Inventory is not binding nor much to be regarded at the Common Law either for or against Executors for if it be too high it shall not prejudice the Executor if it be too low it shall not advantage him but the very true value as shall be found by the Jury when it comes in question whether the Executor hath fully Administred or hath Assets in his hands or not is that which is binding in the Law 5. Executors are lyable to satisfie the Obligations made by their Testators though they be not therein bound by Name Also an Action of the Case lyeth against an Executor upon an Assumpsit or the simple contract of the Testator especially where the ground of the Assumpsit is a true and real debt Also the Rationabilis pars bonorum by Custome in some places is maintainable for the Widow and Children against the Executors Also a Detinue lyeth against him for the Goods delivered to the deceased if the Executor doth still continue the possession of them Likewise an Action lyeth against the Executor for arrerages of account found upon the deceased before Auditors Also the Executor of a man that recovereth a Debt upon a Judgement had by the deceased shall be chargeable with restitution if the Judgement be reversed for Errour Also where a Prisoner dyeth in debt to a Goaler for his diet during the time of his imprisonment his Executor is lyable Likewise where one hath a Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Kings and delivereth it to him he then having money of the Kings in his hands if he dye without paying the same his Executor shall stand chargeable with the payment thereof Also the Executors of an Administrator are chargeable where he did neither pay the Debts nor leave the Goods of the Intestate to the next Administrator but otherwise disposed of them Yet an Executor is not chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge 6. But an Executor as hath been formerly implyed is not chargeable for any personal wrong done by the deceased for it dies with his person neither will an Action of Debt lye against him upon the simple Contract of the deceased but an Action of the Case only Neither will an Action lye against an Executor upon an Arbitrement made in the life-time of the deceased albeit it be made in writing Neither will an Action lye against an Executor for Costs given in Chancery against the deceased in a Sute there for it is lost when the party dies And where there be many Executors and all have accepted they must all be joyned in the Sute but if some of them have refused possibly the Sute may be good enough against the rest Otherwise one Executor cannot be charged without his Co-Executors except it be in the Case of Severance and in some special Case where one alone doth the wrong as where one Executor doth detain the Deeds from the Heir 7. Debt brought against the Executor of H. W. The Defendant pleaded That he never was Executor nor Administred as Executor The Jury found That the said H. W. died possessed of divers Goods and that one W. A. was indebted Seven Pound to him which theâ— Defendant had received and for which he had given his Acquittance and that immediately after the death of the said H. W. the Defendant took into his possession all his Goods converted them to his own use enjoy'd them and disposed of them to his own profit at his own will and pleasure And whether upon this matter of Fact the Defendant were Executor or not was submitted to the Court who were of Opinion That this matter of Fact was the Administration as of an Executor and that the Defendant should be charged accordingly Scire Facias upon a Judgement against a Testator in Debt brought against his Executors who pleaded That before they had knowledge of this Judgement they had fully Administred all the Testators Goods in payment of Debts upon Obligations It was adjudged no Plea for at their peril they ought to take knowledge of Debts upon Record and ought first of all unless Debts due to the Queen to have satisfied them It was adjudged accordingly Debt was brought by S. B. against D. B. and others Defendants Executors c. The Defendants pleaded Recovery against them by another in an Action of Debt and shewed the Contents of the Record to which it was Replyed That the Recovery was by Covin to defraud the Plaintiff of his Debt and hereupon Issue was joyned it was found by Verdict for the Plaintiff and agreed by all the Justices That the Judgement should be against the Executor as against the Testators Goods and not as against his own proper Goods being hereunto upon good Advice inclined for several Reasons 1. For that the Plea was a void Plea for the Record which the Defendant pleaded was such as the Plaintiff doth confess and avoid and not like that which is every way false as when one pleads that he never was Executor nor Administred as Executor c. which Plea being every way false and so within his own knowledge also doth for that Reason cause that Judgement in that Case shall be of his own proper Goods 2. Another Reason is That because such Judgement is most agreeable to Reason viz. To give the Plaintiff Recovery of his
after Argument at the Bar adjudged for the Plaintiff that it was not any Plea For they at their peril ought to take cognizance of debts upon Record and ought first of all unless for debts due to the Queen wherein she hath a Prerogative to satisfie them and although the Recovery was in another County than where the Testator and the Executors inhabited it is not material But if an Action be brought against them in another County than where they inhabit and before their knowing thereof they pay debts upon Specialties that is allowable wherefore it was adjudged accordingly Vid. 4 H. 6. 8. 21 Ed. 4. 21. Debt against an Executor who pleaded he had reines in ses mains but certain Goods distrained and impownded it was adjudged to be no Assets to charge him The Case was A. Covenanteth with B. to put his Son an Apprentice to C. or otherwise that his Executors shall pay B. Twenty pound A. doth not put his Son an Apprentice to C. and dyeth B. brings debt against the Executors of A. and it was Resolved by the Court That it lyeth not for Two Reasons 1. It cannot be a debt in the Executor where it was no debt in the Testator And if one Covenants to pay Ten pound debt lyeth against him or his Executors as 40 Ed. 3. 28 H. 8. Dyer are but if he doth Covenant that his Executors shall pay Ten pound an Action lyeth not against them 2. The first part of the Deed sounds in Covenant and the second part shall be of the same nature and condition Q. of this Reason Note Assumpsit by the Testator lies against his Executor in Case the Debt riseth upon a Loan and Promise of the Testator to pay and the Promise be for the payment of a meer debt and not to do any collateral Act and where the Testator himself by reason of such Promise could not have waged his Law in such Case his Executor is chargeable but upon a meer collateral Promise of the Testator an Assumpsit lies not against his Executor Such was the Opinion in Q. Eliz. time but now in Reg. Jac. the Opinion of both Courts was and resolved That the Action against the Executor lies as well in the one Case as in the other Scire Facias Sued by H. against W. Executor to his Father for Execution of a Judgment obtained against the Testator The Defendant pleaded Plenè Administravit at the time of bringing the Action and thereupon they were at Issue and the Jury found That the Testator conveyed a Lease in trust to one Fisher against whom the Executor had recovered One Thousand pound in Chancery which was come to the Executors hands Et si super tota materia c. Two Points in this Case were argued at the Bar and Bench 1. Whether the Plea of Plenè Administravit at the time of bringing the Writ were good in that Judgement was given against the Testator in his life-time and it was Ruled that it was not good but that in such Case the Executor should have pleaded There was nothing in his hands at the time of the Testators death because the Judgement bound him to satisfie that debt before others but by the joyning of Issue the advantage of that exception to the Plea was waved 2. Whether the Summ Decreed in Equity in the Chancery shall be Assets and they all agreed it should be Assets because the Jury found that by vertue of the Executorship it was come to the Executors hands 9 Eliz. Dyer 264. And money arising of the sale of Lands by Executors shall be accounted Assets Chapman and Daltons Case Plowd Also Dammages recovered by Executors pro bonis asportatis in vita Testatoris shall be Assets Vid. Pasch 39 Ed. 3. and C. B. Ordinary and Godfreys Case W. And others brought D. against the Defendant as Executor he pleaded Plenè Administravit And it was found by Verdict That the Defendants Wife was made Executrix who to defraud the Creditors had made a Deed of Gift of the Goods before her marriage with the Defendant and yet retain'd them in her possession and took the Defendant to Husband and died and the Defendant had now as much goods in his hands as would suffice to pay the Creditors their debts And the Court adjudged for the Plaintiff for that the Defendant confess'd himself Executor by pleading Fully Administred and therefore is chargeable because the property of the Goods passed not out of the Wife by that Grant being fraudulently made as aforesaid by the Stat. 13 Regin One sued an Executor in the Ecclesiastical Court for a Legacy who pleaded Recovery in debt against him at Common Law and beyond that he had not Assets wherewith to satisfie To which the Plaintiff in the Ecclesiastical Court Replyed That the Recovery was by Covin and that the Plaintiff in the Recovery offered to discharge the Judgement and the Defendant would not And hereupon the Question was whether a Prohibition should be awarded or not And it was Resolved That it should not be awarded for that the Covin or Fraud is properly examinable in the Ecclesiastical Court because the Legatee cannot sue for his Legacy at the Common Law Action upon the Case of Trover of Goods The Case was this a Recovery in the Exchequer was had against the Executor of P. of Debt and Dammages and Fieri Facias issued de bonis Testatoris si c. And if none then Damna de propriis the Executor dies the Sheriff levies Execution of the Testators Goods before the Return of the Writ and adjudged good notwithstanding his death after the Test of the Writ B. brings Debt against H. on a Demise for years to one unto whom H. was Administrator And the Writ was in the Debet and Detinet Whereupon in Arrest of Judgement it was shew'd in B. R. That it ought to have been in the Detinet only because against an Administrator But it was adjudged That it was good in the Debet and Detinet because the Rent due incurr'd in the Administrators time and the Land is not Assets but only so much of the Profits as the Land is worth above the Rents and the Administrator shall not answer for more than the Land is worth deducting the Rent But in all Cases where an Executor or Administrator brings an Action for a Duty Testamentary there it ought to be in the Detinet only because the Duty being demanded ought to be Assets An Executor is not chargeable for a Debt due by the Testator upon a simple Contract Regularly an Executor shall not be charged without Specialty in any Action wherein the Testator might wage his Law for that an Executor cannot wage his Law of other mens Contracts 46 Ed. 3. 10. b. 11 H. 6. b. Information in the Exchequer in nature of an Account was brought against D. Executor of W. M. supposing that W. M. had received money of the Queens amounting to One
Lease for years worth Fifty pound per annum or more out of which he payes Ten pound yearly Rent and dies in this Case not the full value of the Land yearly but only so much as is above the said Rent shall be deemed Assets in the hands of the Executor or Administrator Or suppose the deceased dies possessed of Goods and Chattels to the value of Two hundred pound and in debt to M. Two hundred pound and to N. One hundred pound and to O. Fifty pound and to P. Twenty pound and Composition is made with M. for Sixty pound or other Summ more or less under Two hundred pound In this Case the Executor is deemed to have Assets chargeable to the other Creditors for so much as is above the Summ so compounded unto Two hundred pound Or where a man is indebted Forty pound to one and Thirty pound to another and dies leaving but Forty pound in all and his Executors agree with the Creditor of Forty pound for Ten pound and have his Acquittance for the Forty pound yet the Thirty pound remaining in their hands shall be Assets 2. If Executors do Recover any Dammages for Trespass or other wrong done to the Testator the money recovered will be Assets in their hands as well as Debts recovered upon Bonds or Bills or Lands by them taken in extent upon Statutes Recognizances or Judgements Yea without ever having these monies Executors may make them Assets in their hands viz. by making Releases or Acquittances or Acknowledgement of Satisfaction for this amounteth to a Receit and chargeth the Executors towards the Creditors with the whole penal Summ though possibly they receive but part as the Principal or some such proportion But Debts or Dammages recovered by a Judgement had by the deceased in his life-time whereof no Execution was are not Assets in his Executors or Administrators hands until Execution be made yea though Execution be made and the Dammages so recovered that they be gotten into the Executors hands or possession yet if the Judgement be Erroneous and the Execution avoidable it shall not be deemed Assets in his hands for which Cause a Debt Sued and Recovered by one as Administrator to A. B. and afterwards a Testament made by A. B. produced and proved is not Assets in the Administrators hands because the Executor in the said Testament may recover it from him 3. A Mortgage Redeemed is Assets unless the Executors redeemed it with their own money Likewise Goods of the Testators redeemed by the Executor with the Testators money are Assets in the Executor it is otherwise if the Executor having no monies of the Testators doth redeem them with his own money If the Testator grant a Lease for years or Horses Sheep Plate or other Cattle unto A. upon some Condition that A. did not perform after the Testators death in this Case the Chattel reverts and comes back to the Testators Executors and is Assets in their hands Also if A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be Assets in his hands because the Executor shall have the Term only as Executor So if A. undertake to deliver in to B. Twenty loads of Coles Wood or other Merchandize whatsoever and this is not performed in the life of B. but afterwards to his Executor this shall be Assets in his hands as well as the money recovered in Dammages for non-performing should have been Likewise any Goods or Chattels whatsoever given or bequeathed to any person by the Testator upon a Condition certain and the Condition not afterwards performed by such Conditional Legatary the said Goods and Chattels conditionally bequeathed do revert to the Executor and become Assets in his hands 4. Encrease gotten to the Executors by Merchandizing with the Testators Goods shall be Assets in their hands and shall charge them Likewise Dammages recovered by an Executor in an Action of Trespass shall as aforesaid be Assets and yet they were never in the Testator Also if a Lease be made to one for life the Remainder to his Executors for years and he dieth this will be Assets in the hands of his Executors though it never were in the Testator So where a Lease for years is bequeathed to A. for life and after to B. who dieth before A. although B. never had this Term in him so as that he could grant or dispose it yet shall it rest in his Executor as his Goods and be Assets in his Executors hands Likewise a Remainder for years so in the Testator that he might grant or dispose it at his pleasure though the same fell not in possession to the Testator in his life-time yet this is Assets to the Executor even whilst it continues a Remainder and before it falleth into possession because it is presently valuable and vendible In like manner Gain gotten by Trading as aforesaid with the Testators money Wool growing upon Sheep after the Testators death also the encrease of Sheep or other Cattel after the Testators death though never in the Testators actual possession shall yet be Assets in the Executor Likewise a Feoffment made to the Feoffors use for life and after him to the use of his Executors or Assigns for a certain number of years that number of years shall be Assets in the hands of the Feoffors Executor Also Goods hypothecated or pledged to the deceased in his life-time and not redeemed or the money thereof when redeemed is Assets in the Executors or Administrators hands Likewise the money raised by the Sale of the deceaseds Lands sold by his appointment by the Executors for the payment of his debts as when the deceased did in his life-time appoint that his Executors shall sell his Lands to pay his debts shall as aforesaid be Assets in the Executors hands Also if Executors had a Villein for years and the Villein purchased Lands in Fee and the Executors entered they had a Fee-Simple but it was Assets The reason was because they had the Villein in auter droit viz. as Executors to the use of the dead And if Executors having Assets do wast it or pay Debts or Legacies in any other order or method than the Law hath prescribed they must answer it out of their own Estates 5. Debts due to the Testator be not Assets in the Testators hands so as to charge him for the payment of Debts and Legacies until Judgement and Execution had or they be otherwise recovered received or released by him And an Executor paying the just value of the Testators Goods to the Creditors may retain the same Goods in his hands which nevertheless shall not afterwards charge the Executor as Assets But if question be concerning the value it is received by all that the
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
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
otherwise 10. If the Creditor hath no Specialty or Writing the Executor is not bound precisely to pay the pretended debt saving for the Servants wages for wherever the Testator might wage his Law no Action lyeth against his Executor But debts due for Servants wages and Workmen also must be paid For Assumptions or Promises made by the Testator upon good consideration will oblige his Executors to a performance or recompence in case of non-performance but these are post-posited and give place to all the former and an Action of the Case may be brought against the Executor upon the Promise or Assumption made by the Testator in his life-time by word only without writing if there be Assets And these Debts by Contract or Assumption express are to be satisfied before Legacies and also before the Reasonable Part to the Wife and Children to which by custome in some Counties they are intitled 11. If there be Two Creditors in equal degree and both sue if the Executor doth by Covin or agreement help that Creditor that began his Sute last to his Judgement or Execution first and there be not Assets then left to pay the other Creditor he must be satisfied out of the Executors own Estate if this Covin be proved against him for an Executor ought not to help one Creditor to a Judgement sooner than the other Covenously But the confession of an Action so done on purpose by an Executor is no Covin in the Law for Covin is where the Action is untrue and not where the Executors bear a lawful favour But where there is really Covin in an Executor there it shall be no prejudice to a Creditor and for this reason it is also that an Acquittance given to an Executor for more than he paid shall not prejudice a Creditor for more than the Executor did really pay 12. A Mortuary or Corse-present is a Gift left by a man at his death to his Parish Church for the recompence of his personal Tithes and Offerings not duly paid in his life-time and this by the Executor was used to be paid next to the Heriot and before the Debts And if a man be sued in the Spiritual Court for a Mortuary a Prohibition will lye Though it appeareth by the Stat. of 13 Ed. 1. commonly called Circumspecte agatis That Mortuaries are sueable in the Court Christian and in the Stat. of 21 H. 8. cap. 6. an Order and Rate in money is prescribed for Mortuaries And in Ancient Times if a man died possessed of Three or more Cattel of any kind the best being kept for the Lord of the Fee as a Heriot the second was wont to be given to the Parson in right of the Church But more particularly touching Mortuaries these Five things are more especially observable from the said Statute 1. That no Mortuary shall be taken or demanded of any for any person dying within this Realm whose moveable Goods at the time of his death extend not to the value of Ten Marks 2. That no Mortuary shall be given or demanded but only in such places where by Custome they have been used to be paid 3. That no person shall pay Mortuaries in more places than one viz. in the place of his most usual Dwelling or Habitation and there but one only Mortuary 4. That for a person deceased having at the time of his death in moveable Goods to the value of Ten Marks or more clearly above his debts paid and under the value of Thirty pounds there shall not be taken above Three shillings and four pence for a Mortuary and under the value of Forty pounds not above Six shillings and eight pence for a Mortuary and of the value of Forty pounds or upward to any summ whatever clearly above his debts paid not above Ten shillings for a Mortuary 5. That for a Woman under Covert Baron or Child or any person deceased that at the time of his death was not a House-keeper nothing at all shall be paid by way of Mortuary And here Note That Mortuaries ought to be satisfied out of the deads part only that is after and not before the Goods be divided among the Wife and Children where by the custome of the Countrey she can challenge her Widows part and they their filial portions yet they are to be paid before any Legacies whatever for that a Mortuary is of the nature of a Legacy yea it is in the Law termed the Principal Legacy Concerning other persons exempted from Mortuaries and of the extensions and limitations and other interpretations thereof see the said Statute of 21 H. 8. at large 13. If an Administrator compound for Forty pound with one who hath a Judgement of One hundred pound this under-hand composition shall not prejudice any other Creditor who is a stranger to it For every Administrator ought to execute his Office lawfully in paying Debts Duties and Legacies in such precedency as the Law requires and an agreement made between them and others shall not be to the prejudice of a third person In Action of Debt brought against an Administrator it was the Opinion of the Court That he might retain monies in his own hands of the Intestates to satisfie a debt due to himself But an Executor of his own wrong should not retain to satisfie his own debt An Administratrix durante minori aetate of an Executrix made divers Obligations unto the Creditors of the Testator and afterwards took Husband The Opinion of the Court in this Case was That so much of the Goods of the Testators as amounted unto the value of the debts paid and undertaken for the. Husband might retain as his own Debt against an Executor by an Original who pleaded a Recovery against him in the Court of Ipswich and that he had not any more Goods than what would satisfie the said Recovery and the Recovery was after the Test of the Original Writ but he averr'd That before the Recovery he had not any notice of the Sute by the Original and the Plaintiff demurr'd and it was adjudged for the Defendant be it whether he had any notice or not for if one sue him and give notice yet he may confess the Action of another who commenced his sute after the former and therein may pleasure his Friend so as it be without fraud But if he be sued by one upon an Obligation and will pay another debt by Obligation without sute there and in that case if he hath notice of the sute it is a Devastavit otherwise if he hath no notice thereof and so in such case the notice is material CHAP. XXIX Of Executors Accounts 1. Executors obliged to Account The Ordinaries power therein 2. Within what time an Executor ought to Account 3. An Account judicially made shall not prejudice absent Creditors or Legataries not duly summoned 1. TO render an Account is not the least part of an Executors or Administrators duty thereto obliged
own false Plea or for that he hath wasted the deceaseds Goods But if the Administrator die his Executors do not succeed him in that Administration but the Ordinary is to commit a new Administration The Law is the same when an Executor dyeth before he hath Proved the Will or Administred any of the Goods in which Case a new Administration is to be granted to the Widow or next of Kin of the first Testator with the Will annexed unless he had also bequeathed the residue of his Goods unto the said Executor for in that case the Administration of his Goods belongs unto the Widow or next of Kin of the Executor and not of the Testator Or if an Executor be made Universal Legatary and die before he hath Proved the Will of the Testator in this case likewise the Administration of the Testators Goods doth belong to the next of Kin of such universal Legatary and not of the Testator 4. If a Stranger that is neither Administrator nor Executor take to himself the deceaseds Goods and Administer of his own wrong he shall be charged and sued as an Executor and not as an Administrator in any Action that is brought against him by any Creditor But if the Ordinary make a Letter Ad Colligendum bona Defuncti he that hath such a Letter is no Administrator but the Action lieth against the Ordinary himself as well as if he took the Goods into his own hands or by the hands of any of his Servants by any other Command or Order And Note that if an Administrator doth alienate or convert to his own use all the Goods which did belong to the Intestate in this case an Action doth lye against the Executor of that Administrator and is lyable to be charged for the debts due by the Intestate which is otherwise of an Executors Executor 5. An Administration must pass under Seal in Writing not by word of mouth for the Ordinary cannot commit Administration by word of mouth otherwise it is if it be entered into his Registry though Letters of Administration be not formerly drawn Yet it may be granted as well upon condition as absolutely and as well for part as for the whole Estate so that a man dying possessed of Goods in Two Provinces making his Will of the Goods only in one of them and dying Intestate as to the Goods in the other Province Administration may be granted as to the Goods of that Province whereof he died Intestate likewise Administration may be granted only for or during some certain limited time Also an Executorship limited to a certain time the Ordinary ought to grant Administration after the expiration thereof or if a man appoint an Executorship not to begin till some certain time after the Testators death Administration is to be granted till that time doth Commence In like manner where an Executor is made conditionally and the condition yet depending it is for prevention of prejudice to Creditors and Legataries Provided that the Ordinary may commit Administration to the said conditional Executor only during the dependency of the condition but upon infringement or defect of the condition Administration is to be granted to the next of Kin. 6. There is also an Administrator durante minori aetate which is a special kind of Administration and is only in case where an Infant under the Age of Seventeen years is made Executor in which case the Administration is committed to one or more of the next of Kin of the Infant during his Minority that is till he be capable of the Executorship which is at the Age of Seventeen years the power of such an Administrator is equivalent to the power of other Administrators and therefore if it be granted during the Minority of several joynt-Executors all under the Age of Seventeen years and one of them dye or attain to the Age of Seventeen years then is the Administration determined so also is it if a Feme-Minor Executrix take a Husband of that Age. And if such an Administrator durante minori aetate get a Judgement and before Execution the Infant-Executor doth come of Age the Executor himself may have Execution of this Judgement 7. To the several reasons and causes for granting of Letters of Administration mentioned in the Premises may be added That if a Testament be not made with all Freedome as it ought to be viz. without fear of Loss or hope of Gain without Threats Flattery Fraud or Collusion without Errour Uncertainty Fallacy Imperfection Cancelling or Revocation or if the Testator be a person incapable of making a Testament or if his Will contrary to the nature of Wills depend upon another mans Will or otherwise the party dying Intestate as aforesaid or Testate and the Executor refuse to Prove the Will In all these cases the Administration is to be committed to the Widow or next of Kin to the Intestate sometimes with the Will annexed if there be any and in some cases not But the Administration is not to be committed according to the Statutes to the Widow or next of Kin in case of suspending the Probate by reason of the yet dependency of some unaccomplished condition in the Will but to him that is made Executor and that only for and during so long time as the condition dependeth for in this case the party is not Intestate so long as the condition is accomplishable or performable Again if the Mind Will and Intention of an intestate touching the disposition of his Goods and Chattels be declared though for want of making an Executor he dye Intestate so as Administration is to be committed yet for that here is not only an inchoation but in part a progression of a Will it is to be annexed to the Letters of Administration and to be observed and performed by the Administrator In Detinue brought by an Administrator of a Chain of which the Intèstate died possessed and which after came to the Defendants hands the case was upon a special Verdict That the Administration was committed to the Defendant in London by the Bishop of Cork being in London but they did not find that the Defendant was possessed of the Chain in London and in this Case these Points were resolved 1. That a Bishop of Ireland being in England might commit Administration of things in Ireland because it is but a Power and Authority which follows his person wheresoever it is 2. That an Administrator made by a Bishop of Ireland could not bring an Action here as Administrator because of the Letters of Administration granted in Ireland there could be no Tryal here 3. That an Administrator might declare of his own possession although he was never possessed if the Intestate at the time of his death was possessed for that the Law casts a possession upon him 4. That upon a general Issue pleaded the Jury might find a forreign matter as a thing done out of England 5. It was resolved
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
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
cap. 2. h Plow 144. Fitz. Devise 7. a St. 32. H. 8. c. 1. St. 34. H. 8. c. 5 Coke sup Lic III. Perk. Sect. 544. Lit. Sect. 287. Dyer 210. Old N. B. 89 Perk. Sect 500. 539 540. 446. 497 498. A man seized of Land Deviseable Deviseth totum staâ—um suum to one and his Heirs This is good for the Land Dyers Read on Stat. of Wills Sect. 4. §. 6. b Plow 485. c NevillsCase d Plow 144. Fitz. Devise 7. e Adjudged Powscley and Blakemans Case A man Deviseth his Land to Elianor the Daughter of I. S. and he hath divers Daughters whereof one is named Hellen and none Elianor This is a good Devise to Hellen Vid. Dyer's Read Stat. on Wills Sect. 3. §. 15. f Pasch 9. Jac. New mans Case g Co. sup Lit. 386. h Plow 523. 540. Dyer 357. Co. 8. 24. 83. i 38. Eliz. Co. Banc. k Quaere Dyer in his Lect. 1. per Inst Dodr. l Co. 8. 94. Plow 525. m Brownl 80. 1. Part. n Plowd 66. o Plow 343 344. Old N. B. 89. Fitz. Devise 17. p Trin. 37. Eliz. B. R. Breckford vers Parincote q Hill 20. Jac B. R. Loftis vers Baker r Mich. 30. El. in C. B. Geslin Werburrons Case Leon. Rep. p. 137 138. s 5. P. M. vid. Owen 30. Hugh Abridg. t Mich. 24. Car. in B. R. rot 2052. Preston and Holmes's Case Styles 148 149. u Trin. 1649. rot 849. in B. R. Beal and Wyman's Case Styles 240. x 42. Eliz. in C. B. Tayler and Sawyers Case y Trin. 20. Jac. in B. R. rot 811. Knights Case Godbolt 358. z Mich. 2. Car. in B. R. Baffield and Byboro's Case Popham 188. a Dyer's Read on the Stat. of Wills Sect. 3. § 5. b Mich 8. Eli. in C. B. Leon. 3. Part. 11. Hughe's Abr. 3. Vol. in Appen tit Wills Testaments and Devises c Trin. 36. Eliz. Browne and Pease Case Anders Rep. Case 315. d Trin. 37. El. Beckford vers Parnecott Cro. par 3. e Mich 34. El. In the Court of Wards The Lord Cheneys Case Co. 5. part 67. f Mich. 48 39. Eliz. C. B. Bon. vers Smith Cro. par 3. pl. 64. g Trin. 39. Eliz. C. B. Jobsons Case Cro. par 3. h Mich. 41. Eliz. B. R. Yates vers Clinkard Cro. par 3. i Trin. 2. Jac. Horton vers Horton B. R. Cro. par 2. pl. 4 k Mich. 37. H. 8. Anders Case 83. l Mich. 30 31 C. B. Ander Case 117. vid. dict Case m Pasc 5. El. Moo Rep. nu 143. n Mich. 30. El. in c. B. Sir Ant. Denny's Case Leon. 2 Part. 190. Hugh's Abridg. Appen tit Devis o Pasc 16. El. in B. R. Leon. 2. Part. 221. Hughs Abridg. ibid. p Hill 30. Eli. B. R. Carden Tucks Case Cro. 3. Part. 89. Hughe's ibid q Trin. 30. El. B. R. Crickmere Patersons Case Cro. 3. Part. 146. Hughe's ibid. r Mich. 30. El. B. R. Bon Smith's Case Cro. 3 Part. 532. vid. Trin. 39. Eliz. c. B. Johsons Case Cro. 3 Part. 576. Adjudged acc s Pasc 30. El. B. R. Nash Edwards Case Leon. 113. It was the Opinion of the whole Court that the Devise was vaid and Wray Chief Justice said That if he Appoint A. to write his Will and it is Written by B. the Devise is void But if after he ha Written the Will he had Read it to the Devisor and he confirmed it it had been a good Will It was the Opinion of the Court That the Plaintiff being Heir at Law should have Judgement to Recover the Lands against the Three Sisters t Trin. 30. El. Rot. 1160. Whisker Cleytons Case Leon. Rep. p. 156. u Hill 43. Eli. B. R. Beckford Parnecoles Case Goldesb 150. vid. Bret. Rigdens Case Plow Com. 340 w Mich. 45. Eliz. in c. B. Rot. 125. Kerry Dirricks Case Cro. 2. Part. 104. Hughs Abridg. tit Devise x Vid. Plow d Com. 342. in a Bret Rigdens Case a Lit. Broo. Sect. 133. Perk. Sect. 1. 6. Lit. Sect. 586. Kelway 43. Co. sup Lit. 19 20. H. 6. 35. Lit. Bâ— Sect. 432. 19. H. 8. 10. b Dyer Lect. in Stat. Wills cap. 5. §. 1. c Ibid. d Dyer ubi supra cap. 3. §. 3. e Co. 6. 16. Dyer 126. f 18. Jac. B. R. Green vers Dewel g Mic. 13. Jac. B. R. Dyer Sect 307. h Hill 17. Jac. B. R. Adjudge ed. Spicers Case i Trin. 30. El. If I Devise Lands to two equally divided between them they are Tenants in Common But if I Devise Lands to Two equally to be divided between them by I. S. Till such Division be made they are Joynt-Tenants Mich. 31. Eliz. in B. R. Dickons Marshes Case Goldesbr 182 183. k Adjudged Lowen vers Cox Mich. 37 38. El. Com. B. Dyer 25. Lit. Broo. Sect. 133. Lit. 283. Perk. Sect. 170. Dyer 350. l Dyer 326. m Pasch 9. Jac Newmans Cafe Brown Rep. 1. part 131. 169. n Goldsb 141. Plow 53. o Dyer Lecture in Stat. of Wills Sect. 5. §. 13. p Hob. Rep. 7. q Brown 129. 147. 149. 1. part part 2. 272. 177. r Co. sup Lit. 9. Perk. Sect. 57 239 New Terms of Law tit Devise s Trin. 2. Car. in B. R. t Mich. 18. Jac. B. R. Green vers Dewel u Pasch 14. Jac. in B. R. w Perk. Sect. 567. x Trin. 28. El. in C. B. rot 1458. Wiseman Wisemans Case Leon. Rep. 57. 58. y Mich 11. Jac. in C. B. Wedlock Hardings Case Godbolt 208. z Co. 1. part 85. in Corbets Case a Trin. 1651. in B. R. Kirman Johnsons case Styles 293 Mich. 45. Eliz. in C. B. Riches case b Ibid. c Coo. 6. part 16. Colliers case d Trin. 7. Car. in B. R. Rose Bartlets case Cro. 1. part 213. Trin. 14. Jac. B. R. Moo Rep. Gu. 1164. Lowen Bedds case Anders par 2. case 10. Pasch 6. El. Moo Rep nu 162. Pasc 17. Jac. B. R. Spicer vers Spicer Coke the Queens Attourney demanded of the Court A Man hath Two Daughters being his Heirs Deviseth his Land to them their Heirs and dyes Whether shall they take as Joynt-Tenants by Devise or as Coparceners by Descent And all the Justices held clearly That they shall have it as Joynt-Tenants for the Devise giveth it them in another Degree then the Common Law would have given it them and after the benefit of Survivorship between them Anonimus Cro. par 3. B. R. e Dyer's Read on Stat. of Wills Sect. 3. §. 3. f Ibid. §. 8. g Ibid. §. 16. h Ibid. §. 17. i Ibid. §. 18. Mich. 15 16. Eliz. Anders case 100. a Hill 13. Jac. in B. R. Blanfords Case Godbold 266. b Hill 8. Jac. in the Court of Wards Sandays Case Co. 9. part 128. c Terms of Law tit Devise Co. sup Lit. 25. Plow 414. d 27. H. 8. c. 17 e Coo. sup Lit. 27. f Trin. 9.