a Testament otherwise it is for the most part held they may 9. An Action of Debt was brought against J. S. as Administrator of J. D. The Defendant pleaded that the Intestate was Out-lawed at the Suit of J. N. after judgement and so being Out-lawed died Intestate It was resolved That the Plea was not good for it is but a Plea by Implication that he hath not any Goods and so but Argumentative And Trin. 37 Eliz. in C. B. Rott 2954. Wolley and Bradwells Case was vouched to be adjudged accordingly and therefore the Court upon the view of the Record in Wolleys Case gave judgement that in the Principal Case it was no Plea If Debt be brought against an Executor and he pleadeth that his Testator was and died Out-lawed it was holden in that case that this doth not prove a Nullity of the Will for then he might have pleaded that he was never Executor but it tends only to this that no Goods did come to his hands for satisfaction of the Testators Debt by reason of the Out-lawry A man Out-lawed to a personal Action may make Executors for he may have Debts upon Contract which are not forfeited to the King Consequently for the same reason Administration of such a mans Goods may be granted If an Exigent for Felony be awarded against a man whereby he loses all his Goods yet he may make Executors to reverse it for there he is not attainted So Administration of such a mans Goods may be also granted CHAP. XIII Of Conditional Testaments 1. When a Testament may be said to be Conditional 2. What words sufficient to express or imply a Conditon 3. The difference between Conditio and Modus 1. THe Testament may then be said to be Conditional when the Executor is therein Conditionally assigned and appointed for the assignation of the Executor is the Life and Soul of the Testament Now the assignation of the Executor is conditional when such a suspensive quality is added thereto as thereby the effect of the disposition is for the time impeded and dependeth on some future event 2. Many and divers are the words which do express or imply a condition in a Last Will or Testament whereby the Testament it self or the disposition of the Testator therein becomes conditional Such are the words following viz. if when whiles which what person who whosoever and sometimes the Ablative case absolute Also these words following viz. except unless otherwise until whensoever as much as in as much as for as much as seeing that to which end to the end that for this purpose so far as so long as also prepositions when they serve to or govern the Accusative Case as By and To yea and when they govern the Ablative Case as With if it so appears to be the Testators meaning And in a word every part of Speech whatsoever it be that suspendeth the disposition of the Testator in expectation of some future event doth either express or imply a Condition 3. Conditio is an annexed Quality which so long as it dependeth unperformed hindereth the effect of the disposition And Modus is a moderation whereby a charge or burden is imposed by the Testator in respect of some commodity which hinders not the effect of the disposition in so strict and exact a manner as Conditio doth And as Conditio is commonly known by the word if so Modus for the most part is known by the word that CHAP. XIV Of the several kinds of Conditions incident to Testaments 1. The distinction of Conditions 2. The Law of Possible Conditions 3. The Law of Arbitrary Casual and mixt Conditions 4. The Law of Affirmative and Negative Conditions 5. Conditions Impossible Unlawful and Captious are ineffectual 6. Necessary Conditions of no force in Law 1. AS many and various are the words and expressions which are as the signs and landmarks of a condition so no less manifold are the divisions and subdivisions in the Law of Conditions themselves but as to our purpose we shall content our selves with a few and reduce them all to these following viz. Conditions are either 1. Possible and they are either Casual Arbitrary or mixt which consist either in Chancing Giving or Doing and are either Affirmative or Negative Or 2 dly Impossible either in respect of Nature of Law of Persons or of Contrariety Or 3 dly Necessary and that in respect either of Fact or of Law And thus all Conditions relating to this subject may be reduced to one of these Three Heads viz. either Possible Impossible or Necessary As for Captious and Vnlawful Conditions they fall in construction of Law under the second head of this distinction 2. Possible Conditions must first be accomplished before the effect can take place unless it sticks not with nor may be imputed to the party on whom the Condition lies wherefore such Condition is not performed for in such Case the Condition will be accounted as accomplished specially if the Condition be Arbitrary and the party not in Mora nor Culpa why the same is not indeed accomplished And here Note that every Possible Condition ought to be precisely observed or performed neither is it sufficient save in some cases to accomplish the same by any other means or in any other manner than is prescribed unless it may appear that the Testator did more respect the end than the means or unless the party in whose favour such Condition was made doth consent unto other means or unless the Condition be when something is disposed in pios usus or unless the Law allows other means than the precise form which is prescribed And whereas it is true in Law what hath been said That when it doth not stand by him to whom the Condition appertaineth wherefore the Condition is not performed it ought to be for the most part accounted as accomplished though indeed and in truth it remains unaccomplished and whereas this is generally true when the Condition is meerly Arbitrary and the party to whom the Condition was injoyn'd not in fault wherefore the Condition is not accomplished so as that an impediment shall be said to excuse a man from delay in the matter of performance of Conditions yet notwithstanding all this when the impediment may be foreseen and prevented such impediment shall not excuse him who doth not avoid the same But when the impediment of performing a Condition doth proceed from the Testator himself then the Condition is reputed for compleat though not accomplished and in that case it shall prejudice neither the Executor nor the Legatary In like manner when the impediment doth proceed from a third person the Condition is to be accounted in Law for accomplished unless such third person were ignorant of the Testators Will. But when the performance of a Condition is hindered by the Will and Providence of God there the Law doth not allow any
be Administrator and have Administration of Leases as well as of personal things because he hath them as an Executor in anothers right and not to his own use Yea it is also said that a Bastard an Excommunicate or an Out-lawed person may be as able and as absolute an Executor as any other Also Infants may be made Executors but the performance of that Office shall not be committed to them untill they have attained unto the Age of seventeen years To the first forementioned may be added Corporations which although lawful ones yet may not stand Executors unless they can duely Prove the Will and take an Executors Oath Finally note that what hath been here formerly said of Executors may be also applyed to and understood of Administrators CHAP. VII Of an Executors Executor 1. That the Executor of a sole Executor is Executor to the first Testator 2. That an Executors Executor cannot perform a Trust committed by the first Testator 3. An Executors Executor hath nothing to do with the first Testators Goods where there is a surviving joynt-Executor 4. In what Case an Executors Executor shall have to do with the first Testators Goods when the surviving joynt-Executor shall not meddle therewith 1. AN Executors Executor where there is no joynt-Executor is Executor to the first Testator as he is to the second and consequently hath a right to all the profit and is liable to all the charge that the first Executor had or was subject unto yet with this caution and difference that the one Testators Goods shall not stand charged for the other Testators debts but each for his own respectively And if in such case the Executors Executor assume the Administration of the first Testators Goods he cannot afterwards refuse the Administration of the Goods of the later Testator but he may accept the later yet refuse the former but not è contra Also an Executors Executor shall not be admitted to Administer the Goods of the first Testator where the first Executor who was his Testator refused to Administer or died before Probate unless all the residue of the first Testators Goods after the debts paid be given in the Will to the first Executor 2. Where a special trust is by Will recommended to an Executor as to sell Lands c. This being not performed in his life-time shall not be performable by his Executor after his death Contrariwise it is of an interest as to take the profits of Lands for certain years towards payment of Debts and Legacies or for recovery of Rents of Inheritance left unpaid in the Testators life-time 3. If Two Executors be appointed whereof one maketh his Testament wherein he nameth his Executor and dieth his joynt-Executor surviving in this Case the Executor of the Executor is not to be joyned with the said joynt-Executor surviving neither in the Execution of the Will nor in Suits or Actions And if such Executor of the Executor have any Goods which did belong to the first Testator the surviving Executor of the same first Testator may have an Action against such Executors Executor for the same Insomuch that if the surviving Executor doth afterward die intestate yet may not the Executors Executor meddle with the Goods of the former Testator for the power of the Executor who died first was determined by his death the other then surviving And the Judge in this Case may commit the Administration both of the surviving Executor who died afterwards intestate and of the Goods of the former Testator not before Administred And if the Executor of the Executor who died first meddle with the Goods of the first Testator he may be sued by the Creditors of the first Testator as Executor in his own wrong But where there is no joynt-Executor there most things which concern immediate Executors extend also to the mediate or more remote Executors that the mediate Executor in the fourth fifth or further degree stands in like manner Executor to the first Testator as the first and immediate Executor and may sue or be sued as the former 4. Suppose Two Executors whereof One refuses to Prove the Will and Administer the other Proves it Administers and dies Testate In this Case the Executor of that joynt-Executor that so Proved the Will shall be the first Testators Executor and the surviving Executor so formerly refusing shall not now be admitted to intermeddle therewith because his Election determined at his Co-Executors death But it is otherwise where the surviving Executor hath accepted the Executorship for in that Case he shall have the sole disposing of the Estate and the Co-Executors Executor is not to intermeddle therewith but to surrender to the other what Goods belonging to the first Testator happen to be in his Custody Errour the Errour assign'd was That W. E. had brought debt upon an Obligation by the name of W. E. Administr Bonorum Catallorum A. E. durante minori aetate of J. E. Executor of the said A. E. Executor of R. E. and demands a Debt upon an Obligation of Twenty nine pound made to the said R. E. the first Testator whereas he could not bring an Action by this Name but as Administrator of R. E. But it was said that Administration of the Goods of R. E. being committed to him by this name omnium Bonorum c. A. E. it may well be committed to him by this Name especially when A. E. did not die Intestate but made an Executor 10 Ed. 4. 1. That by the grant of the Administration of the Goods of the Executor Administration is by it granted of all the Goods of the first Testator 27 H. 8. 7. Curia Contra clearly For by this Administration committed he hath no Authority to meddle with the Goods of the first Testator and for this cause the Judgement was reversed Debt against the Executor of an Executor The Defendant pleaded that the Executors Testator had fully Administred and that he had nothing in his hands at the time of his death and it was found that he had Assets Whereupon a Fieri facias issued to the Sheriff and he returned that the Defendant had nothing And it was held that the Sheriff should be amerced for he should have stopt making such Return And that it should be no prejudice to the Plaintiff for that the Debt shall be charged so long as the Record remains in force not Reversed by Errour nor Attaint And if he hath no Goods of the Testators he shall be charged of his own proper Goods For that when he pleaded that the first Testator had fully Administred he did not say that Assets did not come to his hands after his Testators death CHAP. VIII Of an Executor in his own wrong 1. Who is an Executor in his own wrong and what Acts make him such 2. How far an Executor in his own wrong is chargeable and how impleadable 3. What Acts shall not make a
the Debtor take Administration of the Goods of the Creditor this ought not to discharge him of his debt but it ought to be as Assets in his own hands for that the Intestate did no Act to discharge him from the debt Also if the Obligee make the Obligor his Executor this is a Release in Law of the Action but the Duty remains for the which they retain so much Goods of the Testator Likewise if an Infant of the age of Seventeen years release a Debt this is void But if the Infant make the Debtor his Executor this is a good Release in Law of the Action But if a Feme-Executrix take the Debtor to Husband this is no Release in Law for that is injurious to the deceased and in Law works a Devastavit But if the Testator make the Wife of one indebted to him his Executrix it is a Release in Law as if she her self were the debtor but if after the Testators death she do marry with such a debtor then it is a devastation Also if A. and B. be made Executors the Testator being indebted to A. Ten pound and B. being indebted to the Testator Ten pound in this Case the debt of B. to the Testator stands in Law extinct And as it is thus at the Common Law so also by the Civil Law when the Creditor maketh the Debtor his Executor by such Executorship the debt is confounded and that because of impossibility in Law forasmuch as the Executor cannot bring an Action of debt against himself being one and the same person the Obligation therefore is by secret Act of Law disannull'd 2. So also it is if any one of joynt-Debtors be made Executor or any one of the joynt-Executors be a debtor to the Testator for that they cannot Sue without making him who is a Debtor also a Plaintiff which he is not capable of against himself The Law is also the same for Actions either of Trespass or Account So that if Two persons be joyntly bound to the Testator in One hundred pound and he make one of them his Executor this is held for a Release in Law of the Bond or debt to them both So if one make his Debtor and another his Executors and die in this Case if that Executor who was not indebted to the Testator survive the indebted Executor he shall not have an Action of debt against the Executor of his Co-Executor although the indebted Executor did not Administer in his life-time for the Action was once extinguished and determined and no Action can be brought but in the Name of them both But if one that is indebted make his Creditor and another his Executors the Creditor may have an Action if he do not Administer But when the Testator is indebted to me and maketh me his Executor I may detain the Goods for my debt So that it seems that though the Action be extinct in regard of the Testator yet the debt is still in esse in respect of strangers or other Creditors 3. When a Creditor to the Testator is made his Executor he may detain so much of the Testators Goods as whereby to satisfie himself in the first place before other Creditors But withall although the Testators Creditor being made his Executor be in as good case or better than other Creditors of the Testator and may allow his own debt before other like Creditors and may detain so much of the Goods of the deceased in his own hands as his debt doth amount to yet this is to be understood only when he hath duly made an Inventory of the Deceaseds Goods according to Law Nor hath he such a clear power to pay himself before any other unless his debt be by Specialty or upon Record And as an Executor hath his Election to pay which Creditor he will first that is of equal degree for quality of debt so hath he election to pay and satisfie himself of what part of the Testators Goods he will yea though the Testators Goods amount in all to no more than his own debt And if there come not to the hands of such Executor Goods sufficient to pay himself he may as some conceive have an Action of debt against the other Executor where there are more than one Sed Quaere Whether after he hath once Administred specially if he pay himself any part of the debt he have not thereby barred or disabled his Sute for the residue Otherwise he may sue the Heir for his debt if he hath not Administred as Executor provided that the Bond extend to the Heir which without express words it doth not though for the Executor it be otherwise and so may sue the Heir if the Heir be bound and he have not sufficient Goods as Executor Alwayes observing that although it be commonly spoken in the general That an Executor may first pay himself yet it is to be understood with this caution or condition That the debt to him be of equal weight and dignity with the debts to others for if his Testator were indebted to other men by any Statute Judgement or Recognizance and to him whom he maketh Executor only by Bond or other Specialty then may he not first pay himself that is by paying of himself leave them unpaid whose debts are of a higher nature but if there be sufficient for satisfaction both to them and himself then is it not material which of them is first paid 4. If an Obligee Release to the Executor of the Obligor before Probate of the Will it is a good Release if he Prove the Will afterwards If a Debtee die Intestate and the Ordinary commit Administration to the Debtor whereby the debt is extinct Q. yet it shall be Assets in his hands as to debts because the Ordinary hath no power to discharge the debt It was agreed per Curiam If Administration be committed to the Obligor the same doth not extinguish the debt but if the Obligee doth make the Obligor his Executor the same is a Release in Law of the debt because it is the act of the Obligee himself But if a Woman who is an Executrix takes the Debtor to Husband and the Husband dieth the same is no Release of the debt because it was only so suspended during the Coverture The Father and Son were joyntly and severally obliged to A. who made the Sons Wife his Executrix and devised to her all his Goods after his debts and legacies paid and dies the Wife Administers the Son makes his Wife also Executrix and dies the Wife dies Intestate Administration of the Goods not Administred of the Obligee was committed to F. who sues G. the Father who was the surviving joynt-Obligor And the Court was of Opinion That the making of the Wife of one of the Obligors Executrix was a suspension of the Action during such time as the Executrixship continued
out the Executor unless the money for the Land to be sold be to be distributed in pios usus because in this Case the Frank-tenement after the Testators death is in the Executors not in the Heir for which reason the Heir cannot enter in this Case as he might in the former 3. In an Action of Debt brought against Executors They were at Issue if Assets were in their hands or not and the Jury found by a Special Verdict That the Testator was seized of a House in Fee and made a Lease thereof and of certain Implements of household in it for years rendring Rent to Him his Heirs and Assigns and found that the Executors after the death of the Testator continually received the Rent and prayed Advice of the Court if the same were Assets in the Executors hands And the Opinion of the Court was That it was not Assets for that the whole Rent was to go with the Land in Reversion as magis digne and so did belong to the Heir not the Executors A man Willeth that after twenty years after the death of the Devisor J. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor CHAP. XV. What goes neither to the Heir nor Executor and in what Cases 1. Bona Paraphernalia go neither to the Heir nor to the Exeeutor 2. Things in joynt-Tenancy go neither to the Heir nor to the Executor 3. Things willed by the Testator to be sold for certain uses go to neither of them 4. A Lease simply for Three Lives goes neither to the Heir nor Executor 1. BY the Civil Law those Goods belonging to the Wife called Bona Paraphernalia descend neither to the Heir nor to the Executor neither are they by that Law subject unto the payment of the Husbands debts But now under that notion of Bona Paraphernalia we are not to understand the Wifes Apparel with her Bed Jewels and Ornaments for her person to be comprehended but her convenient Apparel and onely such as is agreeable to her degree and such shall go to the Wife onely the rest unto the Executor And thus much the very word being Etymologized doth imply 2. The Goods and Chattels which one hath in Joynt-Tenancy with another shall not on his death go to his Executor nor to his Heir but to the other surviving Joynt-Tenant and that by right of survivorship Otherwise it is with Tenants in common for if A. and B. have Goods or Chattels in Joynt-Tenancy and if either of them grant what belongs to him unto a Third person in this Case that Third person and he which kept his part unsold are Tenants in Common and therefore if either of them Two die the deceaseds part of such Goods and Chattels shall go to his Executor and not to the surviving Tenant in Common Also if Husband and Wife be Joynt-Tenants of Land and the Husband die the very Corn growing thereon shall survive to her together with the Land and though the Husband sowed it yet shall it not go to his Executor 3. The Monies or Profits arising out of Lands Willed by the Testator to be sold are not accounted as any of the Goods or Chattels of the person deceased and consequently do go neither to the Heir nor to the Executor but to the uses for which it was willed to be sold 4. If one have a Lease simply for Three Lives to him and his Assigns this is no Chattel therefore shall not go to the Executor and it is no Land therefore it shall not go to the Heir but in this Case it shall go to him who first after the Testators death Enters and Claims it as an Occupant if no assignment thereof be made in the life-time of the Lâ—ssee But a Lease for years determinable upon Lives is a Chattel and shall go to the Executor So also doth an Extent upon a Statute CHAP. XVI Of the Indivisibility of the right and interest of Co-Executors Their Indivisibility 1. In point of Power and Authority 2. In point of Interest and Possession 3. In Case of Plaintiffs and Defendants 1. WHere there are more Executors than One or Joynt-Executors to the same Testator One of them cannot give nor release his Interest to the other or if he doth it is void and he who so releaseth shall still have as much Interest as he to whom he released because each had the whole before Therefore if one Executor release but his part of a debt it hath been held that the whole is discharged But if one Executor alone sell Goods of the Testator he alone may maintain an Action of debt for the money So if Goods be taken out of the possession of one Executor he alone may maintain an Action for the same and that without naming himself Executor Also one Executor not joyning in suit with another may any time before judgment release but after Judgement he cannot because then it is altered in nature and turn'd into Rem Judicatam And though many Executors to one and the same Testator make but one Executor yet the devastation wast or misdoing of one shall not charge the rest nor make their Goods lyable for recompence but himself shall answer for it with his own Goods yet no further than the value of the Testators Goods so wasted or misadministred 2. If one of the Executors where there be Two or more grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no Parts or Moities between Executors Thus if an Horse come to four Executors each hath a Horse and yet all four have but one Also though a Lease for One thousand Years of One thousand Acres of Land come to Two Executors or more no partition or division can be made between them because it is not between them as between joynt-Lessees of Land where each hath but a Moitie in Interest though possession of and through the whole but among Executors each hath the whole and therefore if he grants his part he grants the whole yet one Executor may demise or grant the Moitie of the Land for the whole term and so may the other and this way they may settle a Moitie for each in some Third person intrusted for them but one Executor cannot make a Lease to the other of any part because he had the whole before nor can one of them Sue the other as Executor unless the Testator devise to one of his Executors all his Goods after such Debts and Legacies paid and satisfied for in such Case after satisfaction thereof that Executor may take the remainder of the Goods and maintain an Action of Trespass against the other if he take them from him and consequently an Action of Detinue if he keep or detain them but this he may do not as
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
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
Debt out of the Testators and not the Executors Goods which is conceived a more reasonable way than to charge the Executors for that they bear the burthen of the Administration of the deceaseds Will they deserve to have as much favour as Reason will admit and not be charged of their own proper Goods It was further said That if an Executor should be lyable to such Judgement of his own Goods it would be a cause of often refusing the Administration of Testaments for it is a thing of ill consequence to bind Executors in their own proper Goods in any other Cases than have been in fore-time adjudged which Cases were cited out of divers Books but here omitted for brevities sake none of which Cases have any resemblance with this in question Debt was brought against an Executor the Plaintiff Declared upon a simple Contract To which the Defendant pleaded Fully Administred It was found against him and moved in Arrest of Judgement for that the Action was against an Executor who is not chargeable in that manner and it was said That when it doth appear to the Court that the Executor is not chargeable the Court ought not then to Judge for the Plaintiff and to this purpose some Books were cited and it was said That the Reason why an Executor shall not be charged upon a simple Contract is for that he is a Stranger and cannot have notice of the Contract and therefore the Law will not have him to be charged for that alone without somewhat else But in this Case it appears that he had notice of the Contract inasmuch as thereupon he pleaded fully Administred and that Plea being admitted it implyes as if he had known of the Contract and therefore when he pleaded that he had fully Administred which was found against him Judgement ought to have been given for the Plaintiff for proof whereof a Judgment was cited which appears to have been given An. 10 H. 6. fol. 15. and 13 H. 6. As the Book sayes in the like Case against an Executor upon a simple Contract All which notwithstanding it was resolved by the Court That the Plaintiff should take nothing by his Writ giving their Reasons for such their Judgement which for brevities sake are also here omitted Debt against an Administrator upon an Arbitrement made betwixt the Plaintiff and the Intestate in Writing and the Defendant demurr'd thereupon and without argument it was adjudged for the Defendant because the Intestate might have waged his Law But otherwise it were if it had been in debt upon Arrerages of Accounts before Auditors Assumpsit against an Executor upon the Promise of the Testator and in the Declaration it was not averred That he had Assets to pay debts c. But Mich. 29 30 Eliz. It was adjudged that the Declaration was good and the Plaintiff recovered Debt against an Executor upon an Obligation made by his Testator the Plaintiff was Non-suited the Defendant had Costs by order of the Court. Otherwise it is where an Executor is Plaintiff and is Non-suited For it cannot be intended that it was conceived upon malice by him Vid. Stat. 23 H. 8. cap. 15. Debt against an Executor upon an Arbitrement made in the time of the Testator It was demurred in Law whether it lay or not Because the Testator might have waged his Law And adjudged without Argument that it lay not Debt against P. as Executor The Plaintiff had Judgement to recover de Bonis Testatoris And thereupon a Scire Facias was awarded and the Sheriff returned Quod nulla habuit bona Testatoris And the Plaintiff surmiseth that he had wasted the Testators Goods whereupon he prayeth a Scire Facias why he should not have Execution de bonis propriis And ruled by the Court That this Writ shall not be awarded upon the surmise of the party upon a devastation nor in any Case where the Judgement is de bonis propriis unless it be upon return of the Sheriff where he returns a Devastavit Vid. 9 H. 6. 9. 57. Fitzh Execution 9. Scire Facias against an Administratrix to have Execution of a Judgement against the Intestate the Defendant pleaded Quod nulla habet bona quae fuerunt Intestati tempore mortis suae in manibus suis Administranda nec habuit die impetrationis brevis nec unquam postea And it was thereupon demurred and held by all the Court that it was not any Plea for a Judgement cannot be answered without another Judgement and it may be she had Administred all the Goods in paying debts upon Specialties which is not any Administration to bar the Plaintiff Or as some said it may be she had paid Debts upon a Statute or Recognizance which is not allowable against a Judgement But Anderson denied it for there is not any Priority of Debts upon Record unless in Case of the Queens Debt which is first to be paid And here the Defendant ought to have pleaded specially how she had Administred Wherefore it was adjudged for the Plaintiff The Defendant pleaded Out-lawry in the Testator 29 Eliz. not reversed and it was thereupon demurred Herne for the Plaintiff moved That it was not any Plea because admitting it to be a Plea it should be in regard of the Testators being Out-lawed he could not have any Goods but what appertained to the Queen and then the Executors might not have any Goods to satisfie But that is not so for the Testator might have a debt due to him upon a Contract which is not forfeited or it might be the Testator Devised Lands to be sold and which are sold the money is Assets in their hands and in 3 H. 6. 17 32. it was holden to be no Plea And of that Opinion were Walmesley and Owen For a person Out-lawed may well make a Will and have Executors over and besides the Goods forfeited to the Queen as in the Cases before put and others of the same nature But Beamond è contra for the Bar is good to a common intent and these kind of Assets shall not be intended unless they be shewn Wherefore primâ facie the Plea is good Anderson absente Adjournatur Afterwards for defect of pleading without regard to the matter in Law it was adjudged for the Plaintiff 8 Ed. 4. 6. 21 Ed. 4. 5. 39 H. 6. 27. Errour of a Judgement in C. B. against Three Executors The Errour Assigned was That one of them died pending the Writ before Judgement And Warberton moved that this was Errour but when one of the Executors Plaintiffs die this is no Errour for they might be served But the Court held it no Errour 3 H. 7. 1 3. 8 Ed. 3. 11. Scire Facias against Executors upon a Judgement against their Testator in debt They pleaded that before they had any knowledge of this Judgement they had fully Administred all the Testators Goods in paying of debts upon Obligations and it was thereupon demurred and
after Argument at the Bar adjudged for the Plaintiff that it was not any Plea For they at their peril ought to take cognizance of debts upon Record and ought first of all unless for debts due to the Queen wherein she hath a Prerogative to satisfie them and although the Recovery was in another County than where the Testator and the Executors inhabited it is not material But if an Action be brought against them in another County than where they inhabit and before their knowing thereof they pay debts upon Specialties that is allowable wherefore it was adjudged accordingly Vid. 4 H. 6. 8. 21 Ed. 4. 21. Debt against an Executor who pleaded he had reines in ses mains but certain Goods distrained and impownded it was adjudged to be no Assets to charge him The Case was A. Covenanteth with B. to put his Son an Apprentice to C. or otherwise that his Executors shall pay B. Twenty pound A. doth not put his Son an Apprentice to C. and dyeth B. brings debt against the Executors of A. and it was Resolved by the Court That it lyeth not for Two Reasons 1. It cannot be a debt in the Executor where it was no debt in the Testator And if one Covenants to pay Ten pound debt lyeth against him or his Executors as 40 Ed. 3. 28 H. 8. Dyer are but if he doth Covenant that his Executors shall pay Ten pound an Action lyeth not against them 2. The first part of the Deed sounds in Covenant and the second part shall be of the same nature and condition Q. of this Reason Note Assumpsit by the Testator lies against his Executor in Case the Debt riseth upon a Loan and Promise of the Testator to pay and the Promise be for the payment of a meer debt and not to do any collateral Act and where the Testator himself by reason of such Promise could not have waged his Law in such Case his Executor is chargeable but upon a meer collateral Promise of the Testator an Assumpsit lies not against his Executor Such was the Opinion in Q. Eliz. time but now in Reg. Jac. the Opinion of both Courts was and resolved That the Action against the Executor lies as well in the one Case as in the other Scire Facias Sued by H. against W. Executor to his Father for Execution of a Judgment obtained against the Testator The Defendant pleaded Plenè Administravit at the time of bringing the Action and thereupon they were at Issue and the Jury found That the Testator conveyed a Lease in trust to one Fisher against whom the Executor had recovered One Thousand pound in Chancery which was come to the Executors hands Et si super tota materia c. Two Points in this Case were argued at the Bar and Bench 1. Whether the Plea of Plenè Administravit at the time of bringing the Writ were good in that Judgement was given against the Testator in his life-time and it was Ruled that it was not good but that in such Case the Executor should have pleaded There was nothing in his hands at the time of the Testators death because the Judgement bound him to satisfie that debt before others but by the joyning of Issue the advantage of that exception to the Plea was waved 2. Whether the Summ Decreed in Equity in the Chancery shall be Assets and they all agreed it should be Assets because the Jury found that by vertue of the Executorship it was come to the Executors hands 9 Eliz. Dyer 264. And money arising of the sale of Lands by Executors shall be accounted Assets Chapman and Daltons Case Plowd Also Dammages recovered by Executors pro bonis asportatis in vita Testatoris shall be Assets Vid. Pasch 39 Ed. 3. and C. B. Ordinary and Godfreys Case W. And others brought D. against the Defendant as Executor he pleaded Plenè Administravit And it was found by Verdict That the Defendants Wife was made Executrix who to defraud the Creditors had made a Deed of Gift of the Goods before her marriage with the Defendant and yet retain'd them in her possession and took the Defendant to Husband and died and the Defendant had now as much goods in his hands as would suffice to pay the Creditors their debts And the Court adjudged for the Plaintiff for that the Defendant confess'd himself Executor by pleading Fully Administred and therefore is chargeable because the property of the Goods passed not out of the Wife by that Grant being fraudulently made as aforesaid by the Stat. 13 Regin One sued an Executor in the Ecclesiastical Court for a Legacy who pleaded Recovery in debt against him at Common Law and beyond that he had not Assets wherewith to satisfie To which the Plaintiff in the Ecclesiastical Court Replyed That the Recovery was by Covin and that the Plaintiff in the Recovery offered to discharge the Judgement and the Defendant would not And hereupon the Question was whether a Prohibition should be awarded or not And it was Resolved That it should not be awarded for that the Covin or Fraud is properly examinable in the Ecclesiastical Court because the Legatee cannot sue for his Legacy at the Common Law Action upon the Case of Trover of Goods The Case was this a Recovery in the Exchequer was had against the Executor of P. of Debt and Dammages and Fieri Facias issued de bonis Testatoris si c. And if none then Damna de propriis the Executor dies the Sheriff levies Execution of the Testators Goods before the Return of the Writ and adjudged good notwithstanding his death after the Test of the Writ B. brings Debt against H. on a Demise for years to one unto whom H. was Administrator And the Writ was in the Debet and Detinet Whereupon in Arrest of Judgement it was shew'd in B. R. That it ought to have been in the Detinet only because against an Administrator But it was adjudged That it was good in the Debet and Detinet because the Rent due incurr'd in the Administrators time and the Land is not Assets but only so much of the Profits as the Land is worth above the Rents and the Administrator shall not answer for more than the Land is worth deducting the Rent But in all Cases where an Executor or Administrator brings an Action for a Duty Testamentary there it ought to be in the Detinet only because the Duty being demanded ought to be Assets An Executor is not chargeable for a Debt due by the Testator upon a simple Contract Regularly an Executor shall not be charged without Specialty in any Action wherein the Testator might wage his Law for that an Executor cannot wage his Law of other mens Contracts 46 Ed. 3. 10. b. 11 H. 6. b. Information in the Exchequer in nature of an Account was brought against D. Executor of W. M. supposing that W. M. had received money of the Queens amounting to One
thousand five hundred pound upon a special Verdict the Case was That W. M. had received annually out of the Exchequer Fifty pound as a Fee for his Diet for Thirty years together which was paid him by the Command of the Lord Treasurer who had Authority by Privy Seal to make allowance and payment of all Fees due but in truth these were not any due Fees And whether his Executor shall be charged with these Summs so received was the Question And after Argument it was adjudged that he should be charged for it was held That this payment of the money by the appointment of the Lord Treasurer was not allowable for the Privy Seal is not sufficient Authority to dispose of the Queens Treasure unless where it is due and he disposing of it otherwise it is out of his Authority 2. It was held That this money delivered by Authority of the Lord Treasurer who is quasi a Judicial Officer and it was quasi a Judicial Act by him yet it shall not bind the Queen for it was without his Authority and without warrant to make allowance thereof not being due and it is at his peril who receives it or demands allowance thereof For these and other Reasons mentioned in the Report it was adjudged for the Queen against the Defendant and although he were Executor he should answer for it as a debt from the Testator 11 Co. 90. b. Errour upon a Judgement given in an Assumpsit against an Executor upon a Promise of the Testators where the Plaintiff declared That the Testator in consideration of Marriage promised to pay the Plaintiff One hundred pound and for non-performance of this promise brought the Action and Judgement there given for the Plaintiff and this matter was assigned for Errour that the Action lay not against an Executor and all the Justices and Barons besides Clark Baron held it to be Erroneous for this cause For Anderson said The Reason why Debt lies not against an Executor upon a Contract of the Testators is because the Law doth not intend that he is privy thereto or can have notice thereof and he cannot gage his Law for such a debt as the Testator might and when debt will not lie it is not fit that this Action upon a bare Promise should bind him for it stands upon one Reason And if these Actions should be allowable it would be very mischievous wherefore the Judgement was reversed Q. Whether a Recovery in this Action against an Executor is allowable against a debt upon an Obligation if it should be an Administration for then it would be mischievous to Creditors and if it should not be an Administration it would then be mischievous to Executors that they should be charged therein and not have allowance thereof against other Creditors for it may be that at the time of the Recovery they did not know of other debts Note that this Term was given the like Judgement betwixt Griggs and Helhouse in an Action brought against an Administrator upon a Promise of the Intestates to pay money c. Debt against the Defendant as Administratrix of J. S. upon plene Administravit pleaded it was found by Verdict That the Testator at the time of his death had Goods to the value of One hundred pound and was bound to another by Obligation in One hundred pound and that the Defendant had taken in this Obligation and made another in her own Name with Sureties to the Obligor And upon the motion of Heale the Court held That this was an Administration and it is in the nature of a payment and so much of the Testators debt is thereby discharged and so it was said to be adjudged in Woods Case Nota fuit Ruled accordingly Pasch 30. in C. B. which was entered Mich. 28 29 Eliz. inter Stamp Hutchins Action upon the Case on Indebitatus Assumpsit doth well lye for every debt implyes a Promise and it is one good consideration in Facto whereon to found an Action But for a debt by simple Contract due by the Testator no Assumpsit lies against Executors and it was openly delivered by Popham Chief Justice No. 44 Eliz. to be the Resolution of all the Judges and to be a President in all Cases that might after happen It was agreed by Yelverton Williams and Crook Justices That if a man by Indenture lease Land to J. D. for years rendring Rent and J. D. dye making A. his Executor the Lessor may have Action of Debt against the Executor for the Rent reserved and the Arrears thereof after the death of the Lessee albeit the Executor never enter nor agree to the Lease for the Executor represents the Testators person and the Testator by the Indenture was stop'd and concluded to pay the Rent during the Term upon his own Contract and albeit the Rent exceeded the value of the profit of the Land yet the Executor cannot waive the Land but notwithstanding that shall be charg'd with the Rent Vid. Opin Ascue 21 H. 6. 24. 11 H. 4 Contr. Action Sur Trover and Conversion of Goods upon demurrer the Case was The Ordinary committed Administration of the Goods of an Intestate to the Defendant afterwards the next of Kin sues out a Citation in the Ecclesiastical Court against the Defendant to Repeal that Administration and he pendente Lite sells those Goods and afterwards his Administration is Repealed and Administration committed to the Plaintiff who for this Conversion pendente Lite brings this Action and it was moved for the Defendant that this Action lyes not for the Administration at the Common Law is well committed and the Statute doth not alter the Law in this point but gives a penalty against the Ordinary if he commits them not to the next of Kin and the Administrator till Administration Repealed hath an absolute Authority to dispose of the Goods as he pleaseth Tanfield è contra The Conversion pendente Lite in the Ecclesiastical Court is not lawful but is a Tort to the Plaintiff and that the Sentence there proves which is that all things attempted or done pendente Lite shall be void and the Justices ought to have regard to the Civil Law in this point as in 27 H. 6. Guard 118. 2 R. 2. Quare impedit 143. and 4 H. 7. 13. And by the Sentence it appears that the Administration is revoked as if it never had been and upon this reason it is in Dyer 339. where an Administrator recovered a debt and afterwards another procured himself to be joyned in the Administration and released the debt and afterwards it being revoked this release was not any bar to the execution And Mich. 25 26 Eliz. in the Common Bench between White and Cary this very point was in question and adjudged that the Action lay Gawdy The Action well lies for the Sentence doth not repeal mean Acts done by an Administrator which are for the Intestates benefit but forasmuch as these Goods were not converted
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
value upon the appreyzment is not binding nor much to be respected in a contest at Law for if it be too high it shall not prejudice the Executor if too low it shall not advantage him but the very true value as it shall be found by Jury when it comes in question Whether the Executor hath fully Administred or hath Assets or not is that which is binding in Law 6. If a man give Lands by his Will in Fee to his Executors to be sold for performance of his Will these even before the money be raised are Assets both for payment of Debts and Legacies But if the Land be given only for payment of debts they shall then only be sold for that purpose and not for payment of Legacies But the profits of the Land before it be sold are not in that case Assets but let the Executor see to the sale thereof in due time limited and prescribed by Law lest the Heir Enter for Regularly the mean profits of Lands devised to be sold shall not till the sale be Assets in the Executors hands unless it be otherwise devised by the Testator And although Lands devised to Executors for years are Assets in their hands yet if the Testator Devise that his Executors shall sell his Lands this is not Assets until the Land be sold and the money received for the same shall be Assets Notwithstanding what hath been here said in this point and although Lands given for the payment of Debts and Legacies were Assets before the Statute of 21 H. 8. cap. 5. which sayes indeed that if one Will by his Testament any Lands c. to be sold neither the money thereof coming nor the profits taken shall be accounted as any of the Goods or Chattels of the Testator yet since that Statute viz. in the late Queens time the Law was twice admitted still to be according to the third of H. 6. viz. That Land given to Executors for the payment of Debts and Legacies is Assets and so the money thereof coming Likewise if a man make a Feoffment upon Condition that the Feoffee shall sell the Land and distribute the money to the Testators use whereupon he selleth the Land and the Feoffor maketh him his Executor the money received for the Land sold shall be Assets in his hands 7. As the Goods which a man hath as Executor to another are not liable to be taken in Execution for his own debts either upon Recognizance Statute or Judgement had against him So if such a one die indebted leaving to his Executor such Goods as he had as Executor these shall not be Assets in the hands of such Executors Executor as subject to the payment of the Last Testators debts but liable only to the payment of the Debts and Legacies of the first Testator 8. If the Grantee of the next Avoidance of a Church dies after the Church becomes void and before he presents In this Case the Grantees Executor by presenting whom he please shall not thence be understood to have Assets for the payment of the debts of such Grantee or Testator for that legally no profit could be made of such presentment yet if in that Case a Stranger should happen to present and thereupon such Executor of the said Grantee in a Quare Imped recover Dammages the money of such Dammages so recovered shall be Assets Yet it is by good Authority said That an Advowson is Assets but a Seigniory of Homage or Fealty or in free Almoigne is no Assets because not valuable 9. As the Testators Debtors Land after Execution taken by the Executor in Extent turns a Personal Duty into a Real Chattel and into Real Assets So money paid to the Executor by such a Debtor for such an Extent or by a Mortgage for a Mortgage of a Lease for years turns these Real Chattels into Personal Assets charging the Executor Note that Assets must be in State or Interest and not in use or right of Actions or Rights of Entry for they be no Assets until they be brought into Possession 10. A Debtee making the Debtor his Executor or dying Intestate Administration be committed to the Debtor this Debt as for so much shall still continue as Assets in his hands as to other Creditors yet a Debtor making the Debtee his Executor he may retain so much as to satisfie his own debt and it shall not be deemed as Assets to any other Creditor As suppose A. B. having Goods to the value of One hundred pound dies Intestate and obliged to C. and D. in One hundred pound a piece the Administration of whose Goods is committed to E. F. and then afterwards C. dying maketh the same E. F. his Executor In this case the said E. F. may retain the One hundred pound for satisfaction of his own Debt and it shall not be deemed as Assets in his hands as to satisfie D. or any other Creditor But an Executor of his own wrong to whom the deceased was indebted in a certain summ of money entring upon so much of the deceaseds Goods to the value of his debt thereby intending to pay and satisfie himself shall be held chargeable with so much as Assets in his hands for the satisfaction of any of the deceaseds Creditors or Legatees Likewise the Executors of an Administrator are chargeable where he did neither pay the debts nor leave the Goods to the Administrator but otherwise disposed of them 11. Other mens Goods and Chattels in the Executor or Administrators hands that were in the deceaseds possession whether he had or had not right to them so as they belong not to the Executors make not the Executor or Administrator chargeable they being not Assets in his hands For this reason if another mans Goods happen to be among the deceaseds goods and they all without distinction come to the Executors or Administrators hands this other mens Goods shall not be Assets in their hands Nor are Rents belonging to the Heir though received by the Executor any Assets in his hands neither are the Goods and Chattels of a person Deceased and Out-lawed at the time of his death any Assets in his Executors hands because he was disinteressed thereof by the Out-Lawry 12. An Executor having Goods of the deceased to the value of One hundred pound taking up an Obligation of the Testators of the same summ and really paying the money is discharged from having Assets as to this to any other for that the property thereof is now solely in himself The Case is the same if he surrender his own body or give the body of another for him to the Testators Creditor for the debt but a bare Promise made by the Executor or another for him to pay the Testators said debt will not discharge him of Assets But if Executors do really pay the Testators Debts of their own Goods they may retain the Testators Goods to the same value to their
Fenner held that they should not be Assets for although being but fraudulent it shall be said to be a void Gift against the Donor and Creditor and so lyable to his debt yet it is good betwixt the Donor and Donee and shall not be Assets in the hands of any but the Donor or Donee but here the Husband is a meer Stranger thereto wherefore c. But all the other Justices è contra for that by the Common Law the Gift being fraudulent they are lyable to the Plaintiffs Execution And Popham said If the Gift were good against all but Creditors as it is then they belong to the Donee and in his hands are lyable to this debt and if the Gift be void they remain to the Executors of the Feme and then the Baron having taken them and paid Legacies is chargeable by reason thereof as Executor de son tort demesne and so those Goods quacunque via data are lyable to this debt in whosesoever hands they come unless by Title Paramount or by Sale bonâ fide wherefore it was adjudged for the Plaintiff Scire facias against S. as Executor of F. V. upon a Judgement given against the Testator of Two hundred pound he pleaded payment of Forty pound debt due to the Queen and besides that he had riens in ses mains And thereupon they were at Issue whether he had Assets And it was found by special Verdict That the Testator was possess'd of divers Goods to the value of Two hundred fifty pound and by covin to defraud his Creditors made a Gift of his Goods to his Daughter with a condition of payment of twenty shillings that it should be void and died The Defendant intermedled with the Goods and afterwards the Daughter by this Gift took the Goods and after that Administration of the Goods of F. V. was committed to the Defendant and whether upon this matter he shall be charged as Executor and that those Goods should be Assets in his hands was the question And after Argument it was adjudged for the Plaintiff For first when he medled with the Intestates Goods although he were neither Executor nor Administrator and afterwards Administration was committed unto him a Creditor hath election to charge him as Executor or Administrator especially here when he pleads as Executor the finding by the Jury that he is Administrator is not to purpose 9 Ed. 4. 53. 2 R. 3. 20. 21 H. 6. 8. Secondly all the Court held That this Gift of the Goods is in it self fraudulent as appears by the Condition and the Covin is expresly found by the Jury and then it is utterly void against the Creditors by the Stat. of 13 Eliz. and the Intestate died possessed of them and when afterwards the Donee took them it was a Trespass against the Administrator for which he hath his remedy and they are alwayes Assets in his hands But if a Trespasser takes Goods from a Testator in his life-time so as they never were but a chose in Action to the Executor or Administrator they be not Assets until they be recovered Wherefore notwithstanding the taking of them by the Donee yet they alway remained as Assets in the hands of the Administrator and therefore he is chargeable for them as Executor de son tort by his intermedling with them before Administration committed and the Goods by Law remained alwayes in his possession Wherefore it was adjudged for the Plaintiff CHAP. XXV Additionals to the three last precedent Chapters touching how far and wherein Executors may be charged 1. Executors not chargeable upon a simple Contract of the Testators 2. Actions of Account lye not against the Executors of the Accountant 3. Personal Actions lye not against Executors as Executors 4. Executors lyable for no more than comes to their hands 5. The Husband not lyable for his Wifes debts after her decease 6. In what Case the Ordinary may be sued for the deceaseds debts 7. How an Executor may make himself chargeable de bonis propriis 8. The method of proceedings where Execution is de bonis propriis 9. Executors obliged though not mentioned in the Obligations 10. Contracts dissolved by Obligations after made 1. VVHerever the Testator might wage his Law there the Action lyeth not against the Executor therefore he is not chargeable upon an Action of Debt upon a simple Contract yea though such a debt grew for the most necessary things as Meat and Drink which bindeth even an Infant to payment yet will it not charge the Executor of a man of full Age so that though a common Host or Victualler trust his Guest he loseth his debt by his death Understand these things of Contracts only by word for where the Testator in his life-time did put his Seal to any Deed or Writing made upon any such thing this being then more than a simple Contract taketh from the Vendee his wager of Law and thereby chargeth his Executor But if the Testator Seal only unto a Tally or the like with Scotches expressing a debt this is no such specialty as shall charge his Executors And although no Action of debt lyeth against the Executor as aforesaid upon a simple Contract yet may the Creditor in that Case maintain an Action upon the Case grounded upon the Assumption implyed though not express'd And thus indeed the Executor is charged in substance or matter for a simple Contract though not in manner for a debt but as for breach of promise making recompence in dammages instead of the debt 2. No Action of Account lyeth against Executors except for the King that is against the Executors of the Accountant Nor indeed at the Common Law for the Executors of him to whom the Account is to be made but that is help'd by Statute For Executors could not have an Action of Account at the Common Law in respect of the privity of the Account but the Stat. W. 2. cap. 23. hath given an Action of Account to Executors the Stat. of 25 Ed. 3. cap. 5. to Executors of Executors and the Stat. of 31 Ed. 3. cap. 11. to Administrators And as an Executor is not chargeable in an Action of Account as aforesaid so neither is he 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 or custody 3. Although Executors are in Law understood as the Representees of their Testators persons yet if the Testator in his life-time commit any Trespass either upon the Person Lands or Goods of another no Action lyeth against his Executor for the same the reason is Actio personalis moritur cum persona as hath been formerly declared Hence it is that there is no remedy in Law to compel Executors though they have Assets to make satisfaction of a Trespass done by the Testator in his life-time for every Trespass dyeth with the person And therefore also it
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-Co-Executor 5. If the Executor confess he hath Assets supposing the Executor to be Defendant then may the Sheriff Return a Devastavit If the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Dammages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Dammages as was formerly shewn of the Executors or Administrators own Goods And if the Sheriff upon a Scire Facias Return a Devastavit then a Fieri Facias or Elegit may be sued out to levy the Debt and Dammages of the Executors or Administrators proper Goods And if the Executor plead That he never was Executor nor Administred as Executor and it be found against him that he had Administred but one penny the Judgement shall be to recover the Debt and Dammages of the Executors own Goods And in a Case of Debt brought upon a Record the Execution shall be brought where the Record remains Judgement was given against B. in a debt of One hundred pound in C. B. After the said Judgement he entered into a Statute to J. S. and died Intestate his Wife takes Letters of Administration and removes the Record of the said Debt recovered against her Husband into B. R. by Errour depending the Sute she payes the Debt due upon the Statute to J. S. Afterwards the former Judgement is affirmed On a Scire Facias against the Administratrix to have Execution she pleaded payment of the said Statute beyond which she had not Assets Upon this the Justices of the Kings Bench were divided viz. Popham and Gaudy against Fenner and Yelverton It was referred to the Opinion of the other Justices they joyned in Opinion with Fenner and Yelverton and judged it a good Plea and that the paying of the Statute was no Devastavit for at the time of the Execution of the Statute she could not plead the Judgement of C. B. it being then doubtful whether it would be affirmed or not therefore no default in the Wife-Administratrix in paying and discharging the Statute for she could not have an Audita Querela nor any other Remedy to be freed from payment of the Statute at the time of the Execution thereof CHAP. XXVII Of the Executors power in Sale of Lands devised to be sold 1. The difference between a Devise that the Executors shall sell the Land and a Devise of the Land to the Executors to be sold 2. The profits of Land Devised to be sold are not Assets in the Executors hands for a time before such Sale 3. In what Case the Heir may or may not enter upon unsold Lands devised to be sold 4. Executors accepting may without others Refusing make a good Sale of Lands devised to be sold 5. In what Case surviving Executors cannot sell Lands devised to be sold 1. WHere Land is by Will appointed to be sold neither the money raised nor the profits shall be accounted as any of the Testators Goods or Chattels And when a man deviseth that his Executors shall sell the Land there the Land in the mean time descends to the Heir and until the Sale be made the Heir may enter and take the Profits But when the Land is Devised to his Executors to be sold there the Devise taketh away the Descent and vesteth the State of the Land in the Executors and they may Enter and take the profits and make sale according to the Devise Also when a man deviseth his Land to be sold by his Executors it is all one as if he had devised his Land to his Executors to be sold because he then likewise deviseth the Land whereby he breaketh the Descent 2. If a Testator doth appoint by his Will his Executors to make sale of certain Lands for the use and behoof of the said Testator and the Lands after the Testators decease happen to remain some time unsold the Profits thereof in the said time before such sale made shall not be Assets in the Executors hands unless the Testator did devise That the mean Profits till the Sale should be Assets in their hands for otherwise they shall not be so though the Executors in this Case have no Estate or Interest in the Land but only a bare and naked Power and Authority 3. But if the Executors having power to sell the Land of the Testator defer the Sale thereof after the offer of a reasonable price converting the Profits thereof to their own use the Heir may lawfully Enter to the Land and put out the
to be paid 9. Touching Debts due for Rent upon Leases what the Law in that Case is 10. Debts for Servants wages payable before Legacies 11. Covin in an Executors payments shall not prejudice a Creditor 12. Mortuary what it is when where how much and in what Cases payable 13. Law-Cases relating to this Subject 1. ALl the Debts must be paid before any Legacies be paid or delivered and if there be not enough over and above the Legacies to pay all the debts then and in that Case any thing given by way of Legacy may be sold for payment of the Debts and in such Case the Legataries must be content to lose their Legacies 2. In the first place the Executor or the Administrator if he be a Creditor to the deceased shall be preferred before others so that he may deduct to satisfie himself first although other Creditors lose their whole debt thereby specially if his debt be in equal degree with the other debts so that an Executor may allow his own debt in prejudice of other like Creditors if he hath made an Inventory and in case he be not Executor of his own wrong Understand this especially when the debts are of equal degree for if the Testator be indebted to other men by Statute Judgement or Recognizance and to the Executor only by Bond or Specialty then may he not first pay himself unless there be Goods sufficient to pay both him and them But by the Civil and Ecclesiastical Laws the Executor is in the same case with other like Creditors 3. If there be any debt due to the Crown and the King Commence his Sute for it before any other man can get a Judgement for his debt he shall be satisfied before any others neither is it in the Election of the Executor to prefer any other debt due to any Subject So that if the Executor be Sued by any Subject for any such debt he may plead in Bar of the Sute That his Testator died thus much in debt to the King shewing how c. and that he hath not Goods surmounting the value of that debt And if the Sute be not so by way of Action as that the Executor hath a day in Court to plead but be by way of suing Execution as upon Stat. Merchant or Staple then is the Executor put to his Audita Querela wherein he must set forth this matter But this priority of payment of the Kings debt before any other is to be understood of such of the Kings debts only as are of Record and not of summs of money due to the King upon Wood-sales or Sales of his Minerals for which no Specialty is given or of Amercements in his Courts Baron or Courts of his Honours which be not Courts of Record or of Fines for Copy-hold Estates there or of mony upon the Sale of Strayes within the Kings Manors or Liberties or of forfeitures to the Crown of debts by Contract due to any Subject by Out-lawry or Attainder until Office thereupon found But of Fines and Amercements in the Kings Courts of Record there is no question but they are debts of Record 4. When the King is satisfied then must the debts of the Subject be paid if there be Goods of the deceased sufficient remaining and that in this order or method First before other personal debts whether they be due by Obligation Bill or otherwise Judgements and Condemnations are to be discharged that is the debts due by Record by any Judgement had against the deceased in any Judicial proceeding in any Court of Record Nor is it any Plea for a Creditor by Statute to say that his Statute was acknowledged before the Judgement and so is more ancient for a Judgement though latter yet being more puisne is to be preferred before a Statute in time precedent But if this Judgement be satisfied and is only kept on foot to wrong other Creditors or if there be any Defeazance of the Judgement yet in force then the Judgement will not avail to keep off other Creditors from their debts And here Note that between one Judgement and another had against the Testator precedency or priority of time is not material but he that first sueth Execution shall be preferred and before any Execution sued it is at the Election of the Executor to satisfie which Judgement he will first And here observe farther that this is to be understood of Judgements only against the Testator and not of any against the Executor himself also that what is said of a Testator in Case of an Executor immediate is to be understood likewise of the Testators Testator in Case of the Executor of an Executor Again the foresaid respect to debt by Judgement is not to be restrained or limited only to the Four Courts at Westminster but extends it self to Judgement in all other Courts of Record as in Cities and Towns Corporate having Power by Charter or Prescription to hold Plea of Debt above Forty shillings for though Execution cannot be there had of any other Goods than such as are within the Jurisdiction of that Court yet if the Record be removed into Chancery by a Certiorari and thence by Mittimus into one of the Benches then Execution may be had upon any Goods in any County of England Again Debts upon Specialties must be paid before debts upon Contract and debts upon Record must be paid before debts upon Specialties also a Judgement in a Court of Record shall be paid before Statutes which are but private Records as also before Recognizances acknowledged by Assent of the parties Likewise a debt upon or after a Recovery though it be a latter debt shall be paid before a precedent debt due by Recognizance or Statute because although they are both Records yet the Judgement in the Kings Court upon Judicial proceeding is the most notorious and more eminent in degree than a Statute or Recognizance taken in private by consent of the parties and therefore shall be preferred before it 5. In the next place Debts due by Statutes or Recognizances entered into by the deceased are to be satisfied for the debt due upon Statute Merchant and Recognizance is to be discharged if there be Assets before any Personal Debt For that by vertue of the Recognizance not only the person of the Debtor is obliged but also after the expiration of the day of payment the moveable Goods of the Debtor may be apprehended and sold for satisfaction of the debt Here Note that a Statute and Recognizance standing in equal degree it is at the Executors Election to give precedency to which he will neither is it material which of them was first or last nor between one Statute and another doth the time or antiquity give any advantage as touching the Goods though touching the Lands of the Conusor it doth but as for his Goods in the hands of the Executor who first seizeth them by
his Execution shall have the preferment and before suing of Execution the Executor may give precedency to whom he will and may if he please satisfie the Recognizance before the Statute at least if he do it before Execution sued thereupon But Executors under pretence or colour of Recognizances for the peace or good behaviour or the like or under pretence of Statutes for performing Covenants touching the enjoying of Lands not forfeited nor any summs of mony possibly ever thereupon becoming payable are not to with-hold payment of debts by Specialty and thereby defraud the Creditors so that if the Statute or Recognizance be only for performance of Covenants and no Covenant be broken an Obligation for the payment of present money shall be discharged before it Also no Judgement or Statute that is discharged or is left and suffered to lye by agreement to bar others of their debts shall bar debts upon Obligations And here Note That a Statute is a more expedite remedy than a Recognizance for upon a Statute Execution may be taken out without any Scire Facias or other Sute which cannot be in the Case of a Recognizance for there if a year be pass'd after the acknowledgement no Execution can be sued out against the party himself acknowledging it without a Scire Facias first sued out against him and if he be dead then though the year be not pass'd yet must a Scire Facias be sued 6. After Statutes and Recognizances debts due by Obligations and penal and single Bills are to be paid if there be yet Assets And if there be divers Obligations then it seemeth to be in the power of the Executor to discharge which he will first unless the day of payment in the one Obligation be expired and in the other not yet come in which Case the Obligation whereof the day of payment is expired is to be first satisfied or unless a sute be Commenced for one of the Obligations for then it is not in the Executors power in prejudice of that sute to discharge an Obligation for which no Action is brought But if Two several Creditors bring several Actions against the Executor upon Two Obligations he that first getteth Judgement must first be satisfied Yet a debt due upon Record may be paid depending the Action and although in case of several Obligations when the time of payment upon the one was come at the time of the Testators death not so upon the other and he to whom the Obligation is whose time of payment was expired at the Testators death forbear to demand or sue for his debt untill the other Obligation become also payable In this Case it is then in the Executors power to pay which he please if the Goods extend not to pay both for it is the Commencement of the Sute only which intitles to priority of payment or at least restrains the Executors election therefore an Executor may not pay a debt of equal degree to a Creditor that brings no Action for the same after another Creditor hath brought his Action But whether a bare verbal demand without a sute be sufficient to hinder the Executors payment to the other is a question but resolved in the negative Yet an Executor may make payment of any debt due by Record as by Judgement Statute c. after sute begun by another for some other debt And notwithstanding what hath been said an Executor cannot in all Cases pay him first who first commenced sute but he who first hath Judgement must first be satisfied as when one Creditor doth first begin sute and others suing after him get Judgement before him And in such Cases the Executor may expedite the sute of the one by a quick confession of his Action and retard the sute of the other by Essoignes Emplances or dilatory pleas Nay after sute commenced yet until the Executor hath notice thereof he may pay any other Creditor and then plead that he hath fully administred before notice of the others sute 7. For it is a good Plea for the Executor to say That he had fully Administred before he had notice of the Plaintiffs Writ for though he do pay debts upon Contracts the Writ depending against him upon a Bond whereas he had no notice of the sute he shall not be in such case charged Yet regularly in this case of an Action brought upon a simple Contract the Executor is to plead and to set forth those debts upon Specialties yet debts upon a simple Contract are to be paid before debts of Charity Likewise debts upon a simple Contract are to be paid before amends for a Tespass done by the Testator And here Note that between a debt by Obligation and a debt for Dammages upon a Covenant broken there is not any priority or precedency but the Executor may pay which he please first But if one hath a debt due to him from the deceased upon a simple Contract or the like and he sue the Executor for it when there be debts due to others upon Bonds and Bills unsatisfied in this Case the Executor may not pay this debt nor may he suffer the Plaintiff to Recover in his Action unless he hath Assets sufficient to satisfie the Bonds and Bills over and above that of the simple Contract 8. After Obligations Debts due upon simple Bills or Merchants Books or other Specialties are to be satisfied and discharged though indeed Bills are of the nature of an Obligation and charge the Executor as well as an Obligation for whatever words prove a man to be a debtor or to have another mans money in his hands or wherein the Testator if he were alive could not wage his Law shall charge the Executor And under this Head may be placed debts due upon Shop-Books and some verbal Contracts and Covenants Parol 9. Now debts due for Rent upon Leases of Land or Grants of Rent will come into Consideration though some are of Opinion that debts due for Rent in the Testators life-time be the Rent reserved upon Leases made by or without Deed for years or at Will are in equality of degree with debts due upon Specialties if the Rent grew due since the Testators death then it is not in Law accounted the Testators debt for only so much is in Law accounted Assets to the Executor as the Profits of the Lease amounted to over and above the Rent so as for that Rent so behind the Executor himself stands debtor and therefore is sueable in the Debet and Detinet whereas for the Rent behind in the Testators life-time and all other the debts of his Testator he must be sued in the Detinet only For this reason it is that an Executor sued for debt upon Bond or Bill cannot except in some special cases plead a payment or recovery of Rent grown due since the Testators death though of Rent behind at the time of his death it be
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
a Bond or Obligation is bequeathed in the latter a Discharge or Release 4. And when a Creditor bequeaths a Debt it is not alway material to insert any certain Sum of Money in the Legacy of that Debt for suppose the Testator sayes I bequeath the 10 l. which A. B. owes me be it to A. B. himself or any other in that case a right rather than any certain Sum is understood to be given because if A. B. owed the Testator nothing then nothing is bequeathed and so the Legacy Fruitless 5. But now on the other hand when a Debtor bequeaths what he owes and the Legacy be given to the Creditor himself In that case it is very material to see whether any certain Sum be express'd in the Legacy or not for if there be as when a Debtor-Testator saith I bequeath to A. B. 10 l. which I owe him In that case not so much a bare right only as a certain Sum of Money seems to be bequeathed him for which reason a Legacy of 10 l. will be good to A. B. albeit the Testator owed him nothing 6. But if there were no certain Sum express'd by the Debtor-Testator as if he had only said I bequeath to A. B. what I owe him It is a Fruitless Legacy if he owed him nothing In like manner if a Testator saith I give my Wife what I had with her in Marriage or her Marriage Portion if he had nothing with her in Marriage the Legacy signifies nothing yet if he had said I give my Wife 100 l. which I had with her in Marriage or for her Marriage-Portion though in truth he had nothing with her the Legacy shall be good and is worth her 100 l. Or having had 100 l. with her shall in his Will say I give my Wife 200 l. which I had with her in Marriage the Legacy is good for 200 l. yea though he should therein refer himself to the Articles of Marriage and add as is contained in certain Covenants of Marriage made between us The Reason is because the Law more considers the thing it self when in terminis express'd in a Legacy than any false demonstration thereof Unless it can be sufficiently proved That the Testator meant otherwise than he spake or that he err'd in supposing that to be true which was not so In which case the Legacy avails nothing albeit a certain Sum were in terminis express'd by him 7. For which Reason the Legacy is not good in such case unless he certainly knew he owed nothing to the Legatary otherwise it is if he supposed he did when indeed he did not And the Reason why a Legacy given by a Creditor is nothing worth though the Sum be express'd if nothing be due to him And quite otherwise in the like case if the Legacy be given by a Debtor the Reason I say of this Difference is because the Creditor is understood to bequeath only a Debt Bond or Obligation but the Debtor doth bequeath a certain Sum by Name or the very thing it self expresly 8. A Testator in his last Will and Testament inter alia saith whereas I have in my custody a certain Instrument of Writing wherein A. B. stands bound in the Sum of 400 l. for the payment of 200 l. to C. D. I will that my Executor shall restore the said Bond to C. D. or pay him 200 l. After the Testators death the Bond cannot be found among any of his Writings nor any knowledge thereof possibly had In this case Judgment was given against the Executor and he condemn'd in 200 l. to C. D. as a good Legacy to him by the said Testator 9. When a Debt is bequeathed whereon nothing is due the Bequest is Fruitless if the Testator believed it to be a good Debt albeit the Sum or quantity thereof were express'd in the same But if the Testator when he bequeathed such Debt knew there was nothing due upon it the Legacy is good And although he who bequeaths a Bond bequeaths the Debt contain'd therein yet he that bequeaths to his Debtor the Silver Cup or the like which he had of his in pawn for 5 l. doth not thereby bequeath him that Debt of 5 l. The Reason is because there is nothing but the Pawn or Pledge released the duty and personal obligation still remains Note that he who bequeaths his Debts is understood to bequeath his Credits that is the Moneys or what else is owing to him for Debts as was before observed are taken both Actively and Passively but in this sense of a Creditors bequeathing them they are only taken Actively 10. If a Testator bequeath to A. B. whatever C. D. owe him and C. D. at the same time wrongfully detain'd the possession of certain Lands from the Testator these Lands shall pass by the Devise to A. B. as well as the Money which C. D. owed the Testator as hath been adjudged not at the Common but Civil Law for it is more than presumed that at the Common Law such words though in a Will not Nuncupative but Written are no capable of being by any legal Intellect strain'd to a Latitude of that extent or whether he that bequeaths his Books of Accompt or his Shop Books shall thereby be understood to bequeath the Debts contained therein as also the Moneys in the said Books Calendaried by way of Accompt and design'd for Trade as is likewise evident by the Civil Law 11. Although the Bequest of a Debt is a good Legacy so long as it is a Debt and the Bequest unrevoked yet the Payment of a Debt to the Testator in his life-time extinguisheth the Legacy thereof formerly Bequeathed by him Not so in case it were paid to his Executor soon after his Decease And this holds true albeit the Debt consisted in some certain specifical thing if it perish'd in the Testators time otherwise the Legacy is good Likewise the Testators giving an Acquittance to the Debtor doth extinguish a bequeathed Debt The Reason hereof is because by all these wayes the very substance it self of the Debt which was the thing bequeathed is destroyed yet here Note withall That if a Testator doth demand a Debt which he had bequeathed not with any mind of abating the Bequest but fearing the failure or future Insolvency of the Debtor and shall after keep this Money by it self with some signification therewith what Money it was in such case the Legacy is good notwithstanding such payment precedent which holds yet more strong in case the Testator demands it not but the Debtor himself comes and offers it and with such earnestness as the Creditor-Testator cannot well refuse it And if afterwards the Testator makes a Purchase with part or all of this money which he so demanded not with any mind of abating the Legacy as aforesaid the Bequest remains still good to the Legatary So that if I bequeath
Condition of Superstitious Vses vests the Land in the Crown Ibid § 11. What Provision of Law in Case the Legatary die before Condition broken or the time for performance be come p. 281 § 11. Conditions Testamentary in reference to Marriage p 27 c. Conditions directly against Marriage are unlawfull with the Limitations thereof p. 342 343 § 25. Condition of Marriage is annexable to a Legacy or Devise but an unlawfull Condition thereof is void p 279 § 1. Condition of Marriage with the consent of another doth oblige the Legatary to Marry but not to have such consent Ibid § 2. Condition of Marriage with the Advice of another obligeth the Legatary to Ask it but not to follow it Ibid § 3. What in case the Legatary were Married before Ibid. § 4. p 316 § 18. Though a Condition against Marrige be void yet the Legacy is not p 280 § 5. The Canon Laws Distinction in case of Conditions directly contrary to Marriage p 280 § 9. Conditions of Non-alienation are intended only of voluntary Alienations p 438 § 17. Conditions necessary are as no Conditions Ibid § 18. Conditions implyed by Relative Pronouns Ibid § 19. Positions in Law touching Conditions p 438 § 16 to 26. Conditional Testaments how and when such p 22 23. The several kinds thereof p 23 to 27. Confidence in a Feme Covert is not transferrable to the Husband upon her death p 236. infin Consent or Delivery by an Executor requisite to a Legacy or Divise p 440 § 39 c. Corne standing is Devisable where the Land it self may not be p 225 § 2. p 304 § 13. Corporations or any Member thereof may not Devise the Land they have in right of their Corporations p 225 § 3. Costs not payable by an Executor Non-suited on Judgment against him p 104 § ult p 110 § ult p 117 § ult Given in Chancery against a Testator doth not charge his Executor p 108 § 6. Coverture nulls a Devise it may revive by a new Publication after the Husbands death p 289 § 9. Courtelage passeth by the Devise of a House p 237 in pr. Creditors made Executors p 74 to 77 They may pay themselves first the Limitations of that Rule p 75 76 § 3. Custome of London in reference to Executors or Administrators touching Debts by simple Contract p 116 117 § ult D. Deaf and Dumb naturally not Intestable absolutely p 19. Whether they may make a Devise of Lands p 226 § 3. Death of the Legatary before the existence of a possible Condition annexed to his Legacy insignificates the same p 325 § 13. Debet Detinet in what Cases And in what Cases in the Detinet only p 113 § 7 p 157 § ult Debts Bequeathed p 321 322 c. p 440 § 36 40 41. p 446 § 95. What Debts not Devisable p 440 § 38. Debts and Things in Action are Devisable by Will some only excepted p 321 § 1. Debts Bequeathed how extinguished or not p 324 § 11. Debt Bequeathed twice is due but once p 325 § 12. Debt Bequeathed to Joint-Debtors Ibid Debt Bequeathed the Executor is discharged by Assigning the Bond to the Legatary p 326. § 17. Debt is where the Bond is but upon a Contract it follows the Person p 157 § ult Where Debt upon a simple Contract may by the Custom be paid by an Administrator as soon as a Debt upon a Bond. p 116 117. § ult Debt is Assets though the Debtor be Administrator p 76 § 4. That can be no Debt in the Executor which was none in the Testator p. 107 § 6. Debt lieth not against an Executor upon a simple Contract of the Testator but an Action of the Case only p. 107 108 § 6 p 109 115 § ult It lyeth against them for Rent of Land Leased to their Testator p 115 § ult Debts by Bonds and Specialties are not Comprized in a general Legacy p 327 § 19. Whether Debts Bonds and Specialties are Comprized under the Notion of Moveables or Immoveables p 310 § 10. The Executors Method in paying of Debts p 142 c. Debts upon Record to be first satisfied p 108 § 7. In what case a Statute may be paid before a Judgment p. 137 138 § ult Debts to be paid before Legacies p 142 § 1. The Reason thereof in Law p. 440 § 45. What Debts to the Crown have Priority to the Subjects Debts p 143 § 3. Executors may satisfie their own Debts before any other of equal quality and degree p 142 § 2. What the Law is in Case of Debts for Rent upon Leases p 146 147 § 9. Declaration precedent Derogatory to the subsequent doth prevail against it p 302 § 4. An Exception to that Rule Ibid. Deed of Purchase Devised what it signifies p 448 § 103. Delegates or Judges Delegate whether they may grant Letters of Administration p 158 § ult Demonstrations false destroy not Legacies p 210 § 3 p 441 § 48. Vnderstand it of False Necessary not False Superfluous Demonstrations p 213 § 1. The difference between that and a False Cause p 214 § 2. Designation how a Legacy shall be paid makes it not Conditional nor Questionable whether it shall be paid p 315 § 14. Detinue in what Cases it lies or not p 102 § 7 § ult p 107 § 5. How it lies for an Infant-Executor against an Administrator Durante Minoritate p 162 § ult Devastavit What and in how many ways it may be in what Cases it lies the Method of proceeding therein and Execution thereupon p 134 c. Devise what p 200 § 1. Its Requisites p 202 § 2. In what Court properly recoverable p 204 § 4. Refused to be Delivered by Executors what remedy Ibid. What words or expressions sufficient for a Devise p 209 c. Wherein a Devise of Lands differs from a Bequest of Goods p. 4 § 2. Devise of a thing not in rerum Natura at the Testators death void p 292 § 20. It is as inferrable from the Testators Intention as intelligible by his expression p 295 § 36. An Omission of what the Testator said he would make a description of doth not null a Devise p. 296 § 37. The same thing twice Conditionally Devised by two Testators to several persons how or in what Case good to either or not p 297 § 41. Devisable what p. 221 c. p 311. § 15. Whether a Testator may Bequeath what is not his own p 221. § 2. What things in particular may be Devised Ibid. § 1. How the Testator may Bequeath what is his Executors p. 222 223. § 3. A Bequest to one of what was his own before Ibid. § 4. The difference between the Common and Civil Law in this point of Devising what is another mans Ibid. § 5. Goods in Joint-Tenancy are not Devisable p. 223. § 6. Devisee or Devisor who may be such p. 205 c. Deuisee must be capable of
there is then another Executor of right against whom the Creditors may bring their Action and such wrongful intermedlers with the Goods when there is another Executor of right are liable to be Sued by him as Trespassers Also if a man perform only acts of Charity or of Humanity as feeding the Testators Cattle or preserve them by taking them into his custody or dispose of them only about the Funerals or make an Inventory thereof or deliver the Widow only her convenient Apparel or as a meer Trespasser entereth to his Goods whether quick or dead converting the same to his own not to the Testators use he doth not hereby become Executor in his own wrong when there is an Executor or Administrator of right But if one deliver to the Widow more of her Apparel than is convenient to her degree or if she take or another deliver to her more than such he or she thereby becomes Executor in their own wrong But if a man lodge in my house and die there leaving Goods therein behind him I may keep them until I can be lawfully discharged of them without making my self chargeable as Executor in my own wrong Or if I take the deceased's Goods by a mistake supposing them to be my own or under colour of a Title this will not make me Executor in my own wrong Or if one do but take a Horse of the deceased's and tie him in his own Stable this makes him not Executor in his own wrong Or if I do only lay up the Goods of the deceased to preserve them in safety for him that shall have right to them This will make me no more chargeable than if I took an Inventory of all the deceased's Goods Nor is an Executor in his own wrong chargeable as such where an Executor of right or Administrator hath fully Administred the deceased's Goods Nor shall any light acts or intermedlings make one an Executor in his own wrong where there is a rightful Executor and a Will by him Proved or Administration committed or where there is another of right to be sued for whoso wrongfully takes the deceased's Goods from the rightful Executor or Administrator makes himself not an Executor but a Trespasser to them though it would have made him an Executor in his own wrong had there not been an Executor by right who notwithstanding the other stands charged with and is liable for the debts of the Testator 4. Whosoever feareth to be adjudged Executor in his own wrong his safest course is not to meddle at all but utterly to abstain from all manner of use of the deceased's Goods and especially let him take heed that he do not sell any of the deceased's Goods nor receive any of his debts nor kill any of his Cattle And if one after wrongful Administration of some of the deceased's Goods take Administration and after such Administration taken be sued by a Creditor for a Debt as Administrator and after such wrongful Administration there remain not Goods sufficient to pay that debt the Creditor can recover no more than remained after such rightful Administration taken because he sued him as Administrator therefore he should in such case have sued him as Executor because he was Executor in his own wrong before he took Letters of Administration and so then the Goods which were Administred before the taking such Letters of Administration must thereby be included to be liable for the debt due to the Creditor otherwise not Therefore Creditors must look before they sue for else they know not whether he so intermedling be Executor or Administrator nor consequently how to found their Action aright and safely for good success since a sute against an Executor as Administrator or against an Administrator as Executor will prove frivolous one Errour in a Foundation may be the Foundation of many in the Superstructure 5. A. brought debt upon an Obligation of forty pound against L. as Executor of P. The Defendant pleaded That P. in his life time was indebted to him in forty pound and that there came to his the Defendants hands Goods to the value but of ten pound which he retained towards satisfaction of his own debt and averr'd that no other goods beyond that value of ten pound came to his hands to be Administred c. The Plaintiff replyed and shewed That the Defendant is Executor in his own wrong to P. and that he hath much other goods belonging to P. to be Administred at S. in the County of N. conclude hoc paratus est verificare c. The Defendant rejoyn'd and demanded Judgement whether the Plaintiff shall be admitted to Plead That the Defendant is Executor in his own wrong inasmuch as himself hath by his Declaration affirmed him to be Executor Testamenti upon which the Plaintiff demurr'd in Law To which point in Law the whole Court would hear the Plaintiff for he could well Reply That the Defendant notwithstanding the Declaration is Executor in his own wrong for there is no other Form de Court as was adjudged in Coulters Case But per tot curiam the whole Plea is discontinued for the Defendant having Pleaded that as to the goods to the value of ten pound he had retained them for debt to himself and that he had no more goods to be Administred it was an Offer of a good issue and then when the Plaintiff replyed that he had other goods c. conclude hoc paratus est verificare it is not good for he ought to have said hoc petit quod inquiratur per patriam for that there was any surplusage of goods when denyed by the Defendant and urged by the Plaintiff he ought to have come to an issue but could not by reason of the ill conclusion And in the same Term between Weast Plaintiff and Lane the same Defendant where Weast demanded four pound debt against Lane as Executor ut supra and all the rest of the Plea was ut supra Judgement was given for the Plaintiff because the Defendant had confess'd goods to the value of ten pound in his hands which is more than the debt in demand and therefore it being in the judgement of the Law That an Executor in his own wrong cannot retain to pay himself Judgement shall be given only upon the Defendants own confession and so it was Quod nota Yelv. a Counsel pro Quaerent Debt against the Defendant as Executor of J. S. he pleads that he had taken Letters of Administration Judgement of the Writ c. The Plaintiff replyed that the Defendant Administred de son tort and after took Letters of Administration Judgement c. And upon this it was demurr'd Godfrey for the Defendant argued That now the name of Executor is lawfully changed before the Action brought and therefore is to be sued by his new name as Administrator 9 Ed. 4. 33. 21 H. 6. 5. 18 H. 6.
29. 13 H. 4. Executors 118. Coke contra for when by his tortious Administration he hath given advantage to be sued as Executor he cannot by his own act purge this tort and cause the Plaintiff to sue him by another name but the Plaintiff hath election to sue him one way or other for he shall take no advantage by his own Tort as if one in Execution escapes and is taken away by the Gaoler he shall not have an Audita Quaerela and it will be a mischief if the Plaintiff shall be compelled to sue him as Administrator for it may be that whilst he Administred of his own wrong he wasted the goods and if he be only sued as Administrator he shall only be charged of the goods which came to his hands since Administration 12 R. 2. Administrators 21. And it was afterwards adjudged that the Writ was good and that the Defendant respondra ouster Nota if Judgement be given against an Executor upon Demurrer and Execution be awarded the Sheriff cannot return nulla habet bona Testatoris but is to return a Devastavit as if it had been found against the Executor by Verdict for per Curiam he hath charged himself by his own Plea Debt per c. vers c. as Executor he pleaded Nunques Executor c. and on special verdict found that Administration of the goods of the Testator was committed to the Wife of the Defendant who is dead and that he kept bonam partem bonorum in his hands and sold them Williams moved this Verdict was void for the uncertainty for bonam partem is altogether uncertain but it was held to be well enough for if he detain any part it makes him Executor de son tort and wherefore it was adjudged for the Plaintiff Debt against R. as Executor of T. the Defendant pleads that T. died Intestate and that certain of his goods came to the Defendants hands and afterwards Administration was committed to J. S. to whom he had delivered the said goods Et per Curiam it is not any Plea for if Administration had been committed to himself it would not have purged the first tort So here although Administration is committed to a stranger in regard that he hath once made himself chargeable to the Plaintiffs Action as being Executor de son tort c. he shall never after discharge himself by matter ex post facto Wherefore c. Adjournatur vid. 21 H. 6. 8. 9 Ed. 4. 47. 2 R. 3. 20. The Executor of A. brought Action of Debt against B. as Executor of D. upon a Bond the Defendant pleaded that D. died Intestate and that before the Writ brought Administration of his goods was committed to N. who Administred and yet doth the Plaintiff replyed That D. died Intestate and before the Administration granted divers goods of his came to the Defendants hands which the Defendant as Executor of the said D. Administred seu aliter ad suum proprium usum disposuit whereupon Issue being joyned it was found for the Plaintiff for since there was an Executor before the Administration afterwards granted the Plaintiff had cause of Action vested in him which shall not be taken away by such Administration afterwards granted though it be before the Action brought and so much the rather because the goods taken by wrong before the Administration shall not be Assets in the hands of the Administrator till they be recovered or damages for them A Woman Executrix taketh a Husband afterwards they are Divorced upon a Pre-contract the Wife Appeals to the Delegates and pendant the Appeal the Husband Administreth the goods and then dieth It was a Question whether the Husband should be said to be an Executor in his own wrong vid. 2 Jac. Co. 5. par Reads Case 33. That when a man dieth Intestate and a stranger taketh his goods and useth them or sells them he is an Executor of his own wrong for they to whom the deceased was Indebted have not any other against whom they can bring their Actions for recovery of their Debts And so note that the very seisure of goods will make one an Administrator of his own wrong Debt against G. as Executor to H. the Defendant pleads that H. the Testator was bound in a Stat. of One Hundred Pound and besides that he had not Assets and hereupon they were at Issue and a special Verdict found That the Defendant was Executor de son tort demesne and that the Testator was indebted unto him and that he retain'd divers goods to satisfie that debt due unto himself and over and above then to satisfie the Recognizance he had not in his hands c. si c. It was argued by Tanfield and Goldsmith for the Plaintiff and by Coke for the Defendant The sole point was whether an Executor de son tort may retain goods to satisfie himself And Coke moved that he well might and the Plaintiff by this Action against him hath allowed him to be rightful Executor wherefore the finding that he was Executor per tort is not material and he being allowed to be Executor may do all things as an Executor viz. pay Debts or any other Lawful Acts and as he may do it to a stranger so he may pay himself Gawdy and Fenner were of his Opinion For as he shall be charged by reason of his possession Like reason it is he should be allowed all Lawful Acts and this is here a Lawful Act as where c. Popham and Clinch è contra For an Executor de son tort shall never have any benefit by his Malefesance and c. A Precedent was cited Pasch 32. Eliz. in C. B. That an Executor de son tort might not retain to satisfie himself wherefore c. Afterwards upon another day it was moved again and the Court said They were resolved That an Executor de son tort de mesme cannot retain goods to satisfie himself his own debt And Popham said That divers of the Justices in Serjeants Inn to whom he had propounded the Case were of that Opinion and that they were resolved to enter Judgement for the Plaintiff But it was then surmised to the Court that the Defendant was dead and thereupon a stay of Judgement was prayed but the Court would not stay it upon such surmise but upon the Plaintiffs prayer Judgement was entered 5. Co. 20. Ejectione firmae for Whites Closes upon Not Guilty it appear'd upon the Evidence That a Lease for years was granted to one Okeham who died Intestate and Anne his Wife assigned it per paroll to one Burgess and after she got Letters of Administration and made an Assignment thereof to one Kenrick And the Court directed the Jury for Kenrick the last Vendee yet they agreed That if one Enter as Executor of his own wrong and sell Goods and after obtain Letters of Administration the Sale is good but in this Case there is a Term
as 8 El. 4. 3. And Nichols Justice said That a Personal Action once suspended by the act of the party as here by the act of the Obligee in making the Wife of one of the Obligors his Executrix shall be Extinct for ever otherwise if by the act of Law And it seemed to the Court That by the last clause of the Devise of all his Goods to the Wife after his Debts and Legacies paid the Obligation passed to the Wife And inasmuch as that the duty and debt thereof is a thing in action which by our Law cannot be transferred by a Devise yet it shall enure as a Declaration of the intent of the Obligor that the debt is extinct and the Civil Law allows a Devise of debts due to the Testator to be good And it is averred in the Principal Case That the Debts and Legacies are all paid whereupon Judgement was given Quòd quaerens nihil capiat c. The suggestion was That whereas one was in debt to J. S. in Thirty pound who after by deed of Gift in his life-time conveyed all his Goods and Chattels to A. and after made the Plaintiff and B. his Executors and devised that the Plaintiff should pay out of the Thirty pound which he owed him Ten pound to the Defendant for a Legacy who brought the Plaintiff into the Ecclesiastical Court for the same where by the Law the Thirty pound debt is extinct by making the Plaintiff Executor and shewed that he had Proved the Will c. And per Curiam the Defendant shall have a Consultation forasmuch as the joynt-Executor hath no remedy to recover the Thirty pound against the Plaintiff his Co-Executor nor can have any Action for the same during the Plaintiffs life yet the debt not extinct but remains as Assets to any other Creditor as is 8 E. 4. And by the same reason that one debt shall satisfie another debt it shall satisfie a Legacy also and much the rather in regard the express intent of the Testator was to that purpose having precisely limited the Legacy to be paid out of the debt Quod not a per totam Curiam And Consultation was granted accordingly Yelv. Council for the Plaintiff CHAP. XII The general difference between an Executor and an Administrator and wherein they generally agree THey differ thus viz. An Executor is made either by the Testator or by his own Acts but an Administrator is appointed only by the Judge An Executor may appoint an Executor to the first Testator so cannot an Administrator yet a bare and meer Executor or a naked Executor to whom nothing is bequeathed in the Will made choice of meerly for his care and not at all for his profit cannot bequeath the Testators Goods in his Will by Legacies no more than an Administrator for these Goods are to be imployed only for the behoof of the Testator in which respect such Executor is accountable as well as an Administrator But of the Profits and Fruits which happen and arise of those Goods which belong to any as Executor he may make his Testament though not of the Goods themselves and so also in some cases may an Administrator They agree thus viz. An Administrator is entitled to all the Goods and Chattels of the Intestate as well as an Executor to all the Goods and Chattels that belonged to the Testator they are both alike liable to the payment of Debts and Legacies and they are both accountable These are the most general things wherein they differ and agree Their more particular agreements and disagreements are very many according to their distinct Beings Interests and Offices For which reason the Reader for his fuller satisfaction in this point is referred to his own Observations from the Contents of the several Chapters of this Testamentary Treatise CHAP. XIII Of the Executors Rights exclusively to the Heirs 1. The several divisions and distinctions of such things as come to the Executor and what Chattels are 2. Of such Chattels real living and moveable as accrew to the Executor 3. Of such Chattels real without life and immoveable as go to the Executor 4. Of Chattels personal living and moveable belonging to the Executor 5. Of Chattels personal without life and moveable pertaining to the Executor 6. Several Laws in reference to this subject 1. ALL things that come unto an Executor may be divided into things possessory and actually in the Testator or into things only in action and not actually in him and the things possessory may be divided into Chattels real and immoveable or into Chattels personal and moveable Again the possessory Chattels real may be divided into things living or into things without life Also the personal Chattels or Goods moveable may be divided into things living or things inanimate and without life There are also comprehensive of some of these Chattels principal and Chattels accessory that follow the principal So that Chattels are all possessions of Goods moveable and unmoveable except such as are in the nature of a Free-hold or parcel of it And they are called real or immoveable either because they are such in their own nature or because they appertain to something real by way of dependance as a Box with writings of Land the body of a Ward the fruit of a Tree or the Tree it self upon the Land or because they issue out of things immoveable and of a more real nature as Leases for years at Will Wardships Tenants Estates by Statute Merchant Staple or Elegit and Grants of the next Advowson 2. The Chattels Real Living and Moveable which did accrew to the Executor were such as these viz. Wardship being a real Chattel in respect of a Tenure of Land whereby was intended such Wardship as was by Knights Service and not such as is by Socage Tenure also a Villain for years as by Grant for a Term from him that had the Inheritance 3. The Chattels Real without Life and Immoveable that go to the Executors are generally and for the most part in Houses or Lands by Lease or extent upon Judgements Statutes or Recognizances or in things issuing out of Houses or Lands as Rents Commons and the like as arrerages of Rent behind at the Testators death also Advowsons Tithes Fairs Markets Profits of Leets and the like which the Testator had only for years Also the Title accrewed to the Crown upon Attainder of Felony where the party held not of the King viz. the Annum Diem Vastum that is power not only to take the Profits for a year but also to wast and demolish c. is but a Chattel And therefore though granted to one and his Heirs by the King yet shall go to the Executor not to the Heir Also a Lease for years determinable upon lives which is a Chattel and shall go to the Executor As also doth an Extent upon a Statute Likewise if a Termer for years grant his Term by Bequest or otherwise to A. and his Heirs
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
or Legatee but as Executrix by reason of these words viz. for the payment of his debts and for the wealth of his Soul And the Justices held That all works of Charity were within the Intent CHAP. XXVI Of a Devastavit or Wast in an Executor or Administrator 1. What a Devastavit or Wast is and in what Case the Writ of Devastaverunt doth lye 2. How many wayes a Devastavit or Wast may be committed 3. An Executor or Administrator in a Devastavit or Wast is chargeable de bonis Propriis 4. What Acts do not amount to a Wast also a Wast committed by one Co-Executor shall not charge another 5. The manner of Proceedings against Executors or Administrators in case of a Devastavit 1. A Devastavit or Wast in the Executor or Administrator is when he doth mis-administer the Goods and Chattels of the deceased or mis-manage that Trust which is reposed in him either by the Testator as to the Executor or by the Law as to the Administrator and therefore the Writ of Devastaverunt bona Testatoris lyeth against Executors for paying Legacies or Debts without Specialties to the prejudice of Creditors that have Specialties before the debts upon the said Specialties be due For in this Case the Executors are as lyable to an Action as if they had wasted the Goods of the Testator riotously or without cause Likewise the said Writ lyeth against Executors or Administrators when they deliver the Legacies given by the Testator or make Restitution for wrongs done by him or pay his debts due upon Contracts or other debts upon Specialties whose dayes of payment are not yet come c. and keep not sufficient in their hands to discharge those Debts upon Record or Specialties which they are compellable formerly by Law to satisfie or do deviate from that method or order enjoyned Executors by the Law in the payment of Debts and Legacies In such Cases they shall be constrained to pay of their own Goods those Duties which at the first by the Law they were compellable to pay according to the value of that which they delivered or paid by compulsion for such payment of Debts or delivery of Legacies as is aforesaid before Debts upon Record or Specialties whose dayes of payment are already come are accounted in the Law a wasting of the Goods of the deceased as much as if they had given them away without cause or sold them and converted them to their own use 2. From the Premises it is evident that a Devastavit or Wast may be committed several wayes more particularly thus viz. When more is expended about the Funerals of the deceased with respect had to his Estate and degree than is meet and fit when Executors pay Legacies in money or assent to Legacies given in other things before the Debts are paid not reserving sufficient to pay the Debts also when the Debts are not paid in that order and manner as the Law requires but payment is made of that first which should be paid last when there is not sufficient to pay all when the Executor gives a Release of a Debt or Duty due to the deceased before his Receit thereof when he Releases an Action whereby he might recover the deceaseds Goods or the value thereof when he sells the deceaseds Goods much under value specially if in a fraudulent way as to his near friends to his own use or to have money under hand or the like But be the appreyzment what it will and let the Testator sell for what he will he shall stand chargeable to the best and utmost value towards the Creditors but a Sheriffs sale of the Testators Goods upon an Execution at an under-value is no wast in the Executor If an Executor upon a Bond of Two hundred pound forfeited for non-payment of One hundred pound accept the Principal or Cost or Dammage and give a Release or Acquittance of the whole forfeited Bond or of all Actions or upon Record acknowledge satisfaction upon Judgement had this shall be a Devastavit or Wasting of so much as the penal summ is more than is received by him and so far his own Goods stand lyable to Creditors not satisfied And so doubtless is it if he do but give up the Bond having no Judgement upon it though he neither make a Release nor acknowledge satisfaction The Law is the same in Case of releasing of Trespasses or other causes of Action As if one take away Goods from the Testator or his Executor and he give a Release this is a Wast and makes his own Goods lyable Yet on the other side if an Executor by payment of Two hundred and forty pound or thereabouts get in a forfeited Bond of Five hundred pound it shall be an Administration but of Two hundred and forty pound or of no more than he really paid Also the Executors verbal agreement to require or sue for no more or his giving a Receit for so much as he hath received or delivering of the Bond into a Friends hands or into a Court of Equity by way of Security to the Debtor that he shall not be sued for more is no Devastation or Wast since that the rest in Law still remains as due and suable And upon the Issue of Plenè Administravit the Jury is to find whether the Executor hath Assets or not and not whether a Devastation for that must come in by the Sheriffs Return upon the Fieri Facias Again the Executors submitting to Arbitrement matters of Debt or Duty due to the Testator or touching his Goods taken away is another way of discharging dangerous to Executors for if it happen that by the Arbitrators Award the Trespassers or Debtors be discharged without full Recompence made the rest of the value will subject the Executors to the Creditors because it was their own voluntary act to submit to Arbitrators Or if an Executor allow a Writ to suffer Judgement to be had against him upon a Writ which is abatable he shall not have allowance of that but this shall be Return'd as a Devastavit Yea if money be paid by an Executor upon an usurious Contract it is a Devastavit And it was held by the Lord Hobard That if an Executor pay a Bond made upon an usurious Contract it shall be a Devastavit or Wast in the Executor 3. These and the like Acts are said to be a Devastavit or Wast in the Executor or Administrator which being discovered against him by the Sheriffs Return will charge him de bonis Propriis for so much as he hath so mis-administred insomuch that any Creditor may charge him for the Debt due to him from the Testator as for his own proper Debt and for so much Execution shall be made against him upon his own Body Lands and Goods Yea the Husband shall be charged in a Devastavit for the Wast of himself or his Wife where she is an Executrix whilst
Executors if they have no further Authority or Interest than only to sell the Land and distribute the money for then the Frank-Tenement doth descend to the Heir and the Executors are bound to perform the Devise in convenient time But if the money for the same be to be distributed in pios usus then the Frank-Tenement is in the Executors after the death of the Testator and not in the Heir So that in such Case he may not Enter as in the former Yea if Lands Devised to be sold be not accordingly so done by the Executors the Law will then enforce them to sell the Lands so soon as they can because the mean Profits in that Case taken before Sale are not Assets to charge the Executors as compellable to pay debts of the same But if a man Devise that his Executors shall sell his Land there they may sell it at any time for that they have but a bare and naked Power and no Profit 4. If many Executors be named in a Will wherein Power is given to them to sell Land for any purpose and some of these Executors refuse the Executorship In this Case the other Executors who stand to the Will may dispose and sell the Land without the consent of the other who so refused the Executorship But Note That an Executors Executor cannot sell the Land of the first Testator who by his Will gave Power to his Executor to sell the same unless there be a Co-Executor surviving 5. Although the surviving Executor may sell the Land which a Testator doth bequeath to his Executors to be Sold because as the State so the Trust shall survive yet in case the Executors in that part of the Will impowering them to Sell be particularly Named each by his particular Name and one of them refuse and dye before Sale made then the Survivors cannot sell the same because the words of the Testator one of the Executors refusing or being dead cannot be satisfied unless the Testator express in his Will a Power to the Survivors or Survivor of them or to such or so many of them as take upon them the Probate of the Will without which words the Executors being particularly Named it is otherwise But if the Land to be Sold be left to his Executors generally not particularizing their Names then Sale made by some of them only in this Case is good for that now by the Statute of 21 H. 8. cap. 4. it is Provided That where Lands be Willed to be sold by Executors though part of them refuse yet the residue may sell But here Note That they may not sell to him that so refused because he is yet a party and privy to the Last Will and remains an Executor still so long as any Co-Executor lives For it was the Opinion of the c. Note that by the Opinion of the Justices if a man makes his Last Will and Wills that his Executors shall sell his Land and Devises his Land to his Executors to be sold and one of the Executors refuse the Administration of the Testators Goods before the Ordinary the other Executors cannot sell the said Land to the Executor so refusing the Administration by the Statute 21 H. 8. cap. 4. For that Executor notwithstanding such his refusal is still a party and privy to the said Testament and is one of the Executors at his pleasure It was adjudged in B. R. between Vincent and Lee where a man devised That his Sons in Law should sell the Reversion of his Land without mentioning their particular Names if some of them dye that the others may sell Upon a special Verdict the Case was A man seised of Lands in Possession and of other Lands in Reversion upon an Estate for life Deviseth by his Will in writing That his Executors should have all his Lands Free and Customary in D. for Ten Years to perform his Will and the Will of his Father with the Profits thereof and that after the Ten Years his Executors or any of them should sell it for the payment of his Debts He makes Three Executors and dies The one dies the Ten Years expire Tenant for Life dies the Two surviving Executors sell the Land c. Spurling This Sale is not good 1. The Reversion of the Estate for Life passed not because he had other Lands there to satisfie the words and it was not his intent to pass it because there were not any Profits to be taken thereby 2. The Sale by the Two surviving Executors is not good for it ought to have been by all or by one of them only But the Court resolved to the contrary in both wherefore it was adjudged accordingly The same Case is Reported by Anderson thus viz. J. T. brought Ejectione Firmae against J. W. and others The Defendants pleaded Non Culp whereupon Special Verdict was given the which in effect was That one Smith being seised of Twenty Acres of Land made a Lease thereof to one for Life and being also seised of Sixty other Acres made his Will in manner following viz. I Will and Charge my Executors and every of them to fulfill my Fathers Will and this my Last Will in which were divers Legacies In Consideration whereof I give all my Lands and Tenements to my Executors and they to take the Profits thereof by the space of Ten Years and those Ten Years ended I will the same to be sold by my said Executors or by one of them And made Three Executors and died after the Tenant for life died one of the Executors died also The Two Executors Enter on the Sixty Acres and receive the Profits thereof for Ten Years but Entered not on the Twenty Acres but after the Ten Years ended the surviving Executors sold the Twenty Acres to J. H. who Entered and Leased the same whereon the Action is brought It was said That the Executors did not Sell but it was adjudged that the surviving Executors might Sell For it appeared that the Intention of the Testator was That the Land should be sold for the performance of his Will which the surviving Executors might Execute and consequently do what the Testator appointed in order thereunto CHAP. XXVIII Of Debts Legacies and Mortuaries and the Executors method in the payment thereof 1. Debts to be paid before Legacies 2. The Executor may pay himself first 3. What Debts to the Crown shall have priority of payment before Debts to the Subject 4. Judgements upon Record to be satisfied next after the Debts due to the Crown 5. Next after Judgements upon Record Debts by Statutes or Recognizances are payable before meer Personal Debts 6. After Statutes and Recognizances Debts due by Obligations or penal or single Bills are to have the next precedency in payment 7. Debts upon Specialties Bonds and Bills are to be satisfied before Debts upon a simple Contract 8. After Obligations Debts due upon simple Bills Merchants Books and other Specialties are
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
was the Opinion of the Justices That by his own Act he cannot purge himself of the first wrong and therefore this Action by the name of Executor good Note it was resolved per Curiam That Debt upon a Contract of the Intestate doth not lye against an Administrator Debt by an Administrator After Verdict it was moved in Arrest of Judgement That the Declaration was not good because he Counts that Administration was committed to him by the Bishop of St. Davids and he saith not Loci illius ordinarius nor cui Administratio pertinuit sed non allocatur For it is intended that he is the Ordinary and so is the common course of Declarations unless the Administration is alledged to be committed by one who hath a peculiar Jurisdiction The Commissary of the Bishop of London committed the Administration of Goods by word and gave an Oath to the Administrator which was Entered in the Acts of the Commissary but there were no Letters of Administration either in the name of the Commissary or Ordinary and whether this was a good Administration granted by word was the Question It was not resolved but the better Opinion seemed to be that it was not It cannot be without deed If divers persons be made Executors and some of them refuse at one time and some of them at another before the Ordinary they may afterwards Administer the Goods of the Testator but if they all refuse before the Ordinary and the Ordinary commits the Administration of the Goods to another Afterwards they cannot Prove the Will A Merchant of Ireland by an Obligation made in Ireland became bound to A. B. of London which Bond was in London and there remained A. B. died Intestate in Com. B. in England The Bishop of Ireland committed Administration to the Son of A. B. who released the debt The Arch-Bishop of Canterbury committed the Administration to the Wife of A. B. and she brought an Action of Debt against the Obligor and adjudged the Action was maintainable for that the Administration shall be committed by the Ordinary of the place where the Obligation is and not where the Debt first did arise because it is not Local CHAP. XXXI Of Administrations fraudulent and revocable 1. The Statute of 34 Eliz. cap. 8. Touching fraudulent Administrations 2. In what Case an Executor ought to Prove the Will notwithstanding Letters of Administration granted to another 3. Letters of Administration once granted are not revocable at the Ordinaries meer will and pleasure 4. In what Case Acts done by a former Administrator are good in Law notwithstanding second Letters of Administration afterwards granted 5. Cases in Law touching this Subject 1. FOrasmuch as it is often put in ure to the defrauding of Creditors that such persons as are to have the Administration of the Goods of others dying Intestate committed to them if they require it will not accept the same but suffer or procure the Administration to be granted to some Stranger of mean Estate and not of Kin to the Intestate from whom themselves or others by their means do take Deeds of Gifts and Authorities by Letters of Atturney whereby they obtain the Estate of the Intestate into their hands and yet stand not subject to pay the Debts owing by the said Intestate and so the Creditors for lack of knowledge of the place of habitation of the Administrator cannot Arrest him or Sue him And if they fortune to find him out yet for lack of ability in him to satisfie of his own Goods the value of that he hath conveyed away of the Intestates Goods or released of his Debts by way of Wasting the Creditors cannot have or recover their just and due debts Be it Enacted That every person and persons that shall hereafter obtain receive and have any Goods or Debts of any person Intestate or a Release or other discharge of any Debt or Duty that belonged to the Intestate upon any fraud as aforesaid or without such valuable consideration as shall amount to the value of the same Goods or Debts or near thereabouts except it be in or towards satisfaction of some just and principal Debt of the value of the same Goods or Debts to him owing by the Intestate at the time of his decease shall be charged and chargeable as Executor of his own wrong and so far only as all such Goods and Debts coming to his hands or whereof he is released or discharged by such Administrator will satisfie deducting nevertheless to and for himself allowance of all just due and principal Debts upon good consideration without fraud owing to him by the Intestate at the time of his decease and all other payments made by him which Lawful Executors or Administrators may and ought to have and pay by the Laws and Statutes of this Realm 2. Although upon an Executors refusal to Prove the Will and take on him the Office of Executorship and thereupon Administration be committed the Executor cannot as some hold sed Quaere go back again to Prove the Will and assume the Executorship yet if only upon the Executors making default to come in upon Process to Prove the Will the Administration be committed in that Case the Executor may yet at any time after Appear and Prove the Will and so cause the Administration to be revoked Also if after an Executors refusal it shall appear to the Ordinary that he had Administred before such his refusal then may the Ordinary revoke such Administration granted to another upon such refusal and compel the refusing Executor to Prove the Will for that by so Administring precedent to his refusal he hath accepted and determined his Election and therefore cannot be admitted to accept and refuse also so that in this Case also the Administration may be revoked 3. Some have been of Opinion That the Ordinary after he hath granted Letters of Administration may yet afterwards even without cause shewed and at his meer pleasure revoke the same and grant it to another yea that if the Ordinary grant Letters of Administration to one and then again afterwards grant Administration of the same Goods to another that hereby the first Letters of Administration be vacated and revoked albeit there be no express words of revocation contained in the latter But indeed the Law seems far otherwise and that the Ordinary after he hath granted according to the Statutes in that behalf provided the said Administration cannot afterwards at his pleasure revoke it and grant the same to another without cause that is unless the first Administration were illegally granted or where the first Administrator either cannot or will not Administer or the like 4. Where there is a former Administration regularly granted all Acts Lawfully Executed by the first Administrator as Administrator are good in Law and shall bind the next and succeeding Administrators For this reason it is that if Administration be granted to a Stranger and the next of Kin
Appeal It is a good Cause to stay the Sute until the Appeal shall be determined In this Case it was also said That the same was not like unto a Writ of Errour for by the purchasing of a Writ of Errour the Judgement is not impeached until the Record be Reversed But the very bringing of an Appeal is a suspension of the first Judgement for the principal matter If an Executor dye Intestate Administration ought to be granted of the first Testator for now he is dead Intestate 21 Ed. 4. 24. 26 H. 8. 7. But if an Executor after Administration dye Intestate and the Ordinary grant Administration of all the Goods of the Executor he may Administer the Goods of the first Testator 10 Ed. 4. 1. Quaere if an Administrator doth make an Executor and dies his Executor shall not have the Administration of these Goods but a new Administration ought to be granted of them 34 H. 6. 14. D. 32 H. 8. 47. 11. Co. 5. Brud 9. b. Adjudged And if an Executor before Probate of his Testators Will doth make his Executor and dye the Executors Executor cannot take upon him the Execution of the first Testament but Administration of the first Testators Goods is to be granted cum Testamento annexo D. 22 23 Eliz. 372. 8. CHAP. XXXIV Of Succession in the Right Line Descendent 1. What the Jus Repraesentationis is or that several Children by one Father deceased do Conjunctim represent the Person of that Father 2. That Succession when the Case so requires is to be computed in Stirpes not in Capita 3. That the Grand-Child living the Father succeeds not to the Grand-Father nor by the Civil Law if conceived after his Grand-Fathers death 4. How the Succession according to the Civil Law is in Case of Children not all of them by the self-same Parents and how at Common Law 1. NExt to the Widow this Right of Succession in the Right Line descendent is the first degree of Right to the Administration of an Intestates Goods for they are in the first place admissable to such Administration who are of the Right Line descendent from the deceased So that if a man dye Intestate leaving behind him Children Parents and Collateral Kindred the Children do in the first place Succeed as to the Goods whereof he died Intestate exclusively to the Grand-Children whose Parents are living It is otherwise if their Parents be dead for if a man dye leaving one Son and one or more Grand-Children by another Son deceased these Grand-Children are Admissable together with that living Son their Uncle And this is Jure Repraesentationis whereby several Children of one Father do Conjunctim represent the Person of that Father But yet this must be understood according to the Law-Terms not in Capita but in Stirpes only that is not according to the several Branches or by Poll as we use to say but according to the one Common Root of those several Branches and therefore put all the Grand-children together they can have no greater proportion among them all than singly belonged to their Father were he then alive So that in the foresaid case the Estate is to be divided into Two equal parts whereof one Moity is due to the Son the other Moity to the Grand-children to be equally divided amongst them And this Right or Law of Representation holds in infinitum in the Right Line descendent contrary to the Opinion of the Famous Bartol who held that it reached not beyond the Great Grand-children 2. In like manner if there be divers Grand-children by divers Sons deceased and no Son living they succeed to their Grand-Father in Stirpes not in Capita that is as aforesaid not according to the distinct number of the several Grand-children but according to the number of their Fathers or Sons to the Intestate so that the Grand-children by each deceased Son to the Intestate shall Conjunctim and amongst them all respectively have just that proportion which their respective Fathers or Sons to the Intestate could challenge if they had been alive at the time of the Intestates decease so that Two Grand-children by one Son have no more than one Grand-child by another Son because the Son by whom are the Two Grand-children to the Intestate could have no more than the Son by whom there is but one Grand-child in case both the Sons had been living when the Intestate died Indeed if there be no Grand-children save only by one Son then they succeed equally according to their number unless they be in unequal degree as Grand-children and Great Grand-children And the reason why Succession goes in Stirpes not in Capita is because they succeed not in their own right but in the right of their Ancestor 3. A Grand-child whilst his Father is alive hath not the precedent right to the Administration of the Goods of his Grand-Father dying Intestate nor doth a Grand-child succeed to his Grand-Father unless he be born at least conceived at the time of his Grand-Fathers death So that a Grand-child conceived after his Grand-Fathers death is not in his own person by right of Representation according to the Civil Law Admissable to succeed his Grand-Father And that which hitherto hath been said of Sons and Grand-Sons holds true in Law as to Daughters and Grand-daughters who are equally with the other Admissable to a succession of their Intestate Parents Goods without any distinction of Sex 4. Whereas the Law is That Children shall succeed equally to the Administration of their Intestate Parents Goods this must be understood only of such Children as are begotten of the self-same Parents for if there be Children by divers Parents as if a Woman hath had Two Husbands and one Child by the First Two by the Second In this case each of them respectively succeeds according to the Civil Law only to the Goods of his own Father but all of them equally to their Mothers And this also by the same Law holds true as to the Grand-children by such Children of each marriage respectively Otherwise it is if a man hath had two Wives with Goods and Children by each of them and dye Intestate leaving no Relict or Widow for in this case all the Children by both Wives shall equally succeed to the Goods and Chattels of their Father dying Intestate In the case of a Prohibition granted to the Ecclesiastical Court for granting Letters of Administration to a Sister of the half blood when there was a Brother of the whole blood who sued for them It was agreed by the Court That it is in the power of the Ordinary to grant Administration either to the Brother of the whole blood or to the Sister of the half blood at his Election because they are in equal degree of Kindred to the Intestate But if Administration be granted to the Husband and Wife where the Husband is not of Kin to the Intestate but a Stranger in such case if he survive his Wife
after recede from it to the prejudice of the Legatary Likewise if the Testator saith I give 10 l. to A. B. when my Executor will or when my Executor please In this case as in the former the Legacy is not due till the Executor thinks fit but must wait his pleasure and be in a dilatory Expectancy as long as he lives or so long as he doth not say he will pay it But if once he declare that he will pay it and after dyes before he doth pay it his Executor is obliged to make it good Contrariwise if the Legatary dye before the Testators Executor declares his consent to the payment thereof for then it doth not accrue to the Legataries Executor because it is Conditional till the Executor declares his consent to pay it and such a Condition to be performed at the pleasure of another as that the Legacy cannot come to the Legataries Executor before the Accomplishment thereof 3. If the Testator saith I give A. B. 10 l. if my Executor will In that case the Legacy is void because there the Testator subordinates his Will to the Executors makes his Executors Will Absolute and his own Insignificant But in case he saith after this manner viz. If my Executor think fit I give A. B. 10 l. Or if my Executor conceive it expedient let A. B. have 10 l. In these cases the Legacy is good because here the Testator seems not to leave it wholly to the meer will and pleasure of his Executor but as it were to the judgment of any honest or indifferent person or as the Law phrases it arbitrio boni viri The Law is the same in case the Testator saith if my Executor see cause for it or it seem reasonable to him Let A. B. have 10 l. or I would have A. B. to be 10 l. the better for me For although a Legacy cannot be left to the meer will and pleasure of the Executor yet to his just and reasonable will it may for so it is left more to Reason than to his Will 4. But what if the Testator saith I give 10 l. to A. B. if he shall deserve it of my Executor In that case the Legacy is due in case the Legatary shall carry it no otherwise towards the Executor than as any honest man would or might do in the like case or no otherwise than as any honest and indifferent person might or would be well satisfied therewith Likewise if the Testator saith I give A. B. 10 l. if he hath not offended my Executor the Legacy is due if it appears that A. B. hath behaved himself towards the Executor no otherwise than what would satisfie any reasonable and impartial man In a word when it is left wholly to the meer free and arbitrary will and pleasure of the Executor the Legacy is void but when it is left to his will only as it shall seem meet just and equal to him it is good for if in it self it be just and equal the Executor may not interpret it otherwise 5. If a man Devise all his La 〈…〉 to A. B. and his Heirs excepting Twenty pounds for Ten years which he willeth shall be employ'd for his Children This is a good Devise of the Sum of Twenty pounds a year for Ten years Or if one bequeath 20 l. to the Children of A. B. who then hath three Children more or less at the time of making such Bequest and after but before the Testators death he happen to have other Children In this case those other Children he hath afterwards shall have no part of the said Legacy but the Children born at the time of making the Testament shall have it all The Reason is because in this case it is presumed the Testators intention did not extend to any not in rerum natura when there were Children indeed and at the same time in being 6. The Testator saith I give 100 l. to my four Neighbours A. B. C. and D. Provided they bestow 10 l. in a Tombstone to be set on my Grave Although B. should refuse to joyn with the rest therein yet A. C. and D. shall have not only theâ—r respective proportion of the 100 l. but also that part that should have come to B. in case he had performed the Condition Or if he say I give 100 l. to A. and such of my Three Children as shall come to my Funeral and dyes neither of his Children are at his Funeral In this Case A. shall have the whole 100 l. because the Legacy is in the Conjunctive were it in the Disjunctive he could have but 50 l. 7. Suppose the Testator saith I give 50 l. to A. B. And more than that 100 l. to C. D. In this case C. D. shall have an entire 100 l. but no more Possibly the transposition of the words may alter the Case and make the Legacy worth 150 l. to C. D. As if he should say I give to A. B. 50 l. and 100 l. more than that to C. D. But suppose he should say I give 100 l. to C. D. more than I have given to A. B. when indeed he had given nothing at all to A. B. In that case the Legacy of 100 l. is good to C. D. notwithstanding that false Implication to A. B. 8. A. B. makes C. D. his Executor gives in his Will 1000 l. to J. G. and therein sayes I desire that J. G. will pay the said 1000 l. to the Colledge of W. and dyes After the said Colledge is dissolved and before J. G. had received the said 1000 l. from the Executor of A. B. the Question is whether J. G. shall now recover the 1000 l. from the said Executor the Colledge to whom he was to pay it being now dissolved or whether it shall remain in the Executor It is resolved that in case there was no fault in J. G. why the 1000 l. was not paid to the Colledge before its dissolution and the payment prevented for no other Reason but because of the said Dissolution J. G. shall in such case recover the 1000 l. from the said Executor 9. If a Testator bequeath 1 〈…〉 l. to A. B. and C. D. And after one of them appears incapable of taking by the Legacy the other shall have only 50 l. and not the whole 100 l. Yet there are and they of the most Learned who hold That if one of the Legataries be incapable his proportion of the Legacy shall accrue to his Collegatary as is evident by the former Case of the Tomb-stone and never fails where the Legacy is in the Conjunctive by the Law of Accression or jure Aderescendi 10. A. B. pawned a Jewel with C. D. for 100 l. then in his Will makes his Son his Executor and orders that C. D. should sell the Jewel and out of the Proceed thereof pay himself the 100 l. and restore the overplus of the value to his
live or die still remain in and to her only whereof she may make her Will without her Husbands consent and him if she please Executor for otherwise he may not have them after his Wifes decease because of such goods the Wife dying without will the next of Kin to the Wifes Testator may take the Administration as de bonis non Administratis And here Note that though the Wife being Executrix to another may without her Husbands License make her Testament of such Testators Goods yet she may not bequeath them by Legacy without making an Executor But if the Wife be made as well Legatary as Executrix and she accept of the Testators Goods not as Executrix but as Legatary in this case she cannot dispose of the said Goods by Will or otherwise without the Husbands consent for by accepting them as Legatary she makes them her own and consequently her Husbands And Note further that although the Wife being Executrix may without her Husbands License make her Testament of such Goods whereof she is possessed as Executrix yet the fruit and profit arising during the Marriage out of such Goods shall accrew to her Husband and not unto her self as Executrix so that without her Husbands approbation she can make no Testament of such fruits and profits so arising And if it doth not appear whether the Wife accepted the same as Executrix or as Legatary she shall by the Laws of this Land herein not agreeable to the Civil Law be deemed and presumed to have accepted the same as Executrix Q. The ground or reason of such presumption 4. A Wife without her Husbands Licence or Consent may make her Testament of such Goods and Chattels whereof she was not possessed during marriage and as to such things she may make her Husband Executor if she please And the Husband cannot by Will bequeath or make an Executor of an Obligation which he hath in right of his Wife nor of any other thing meerly in Action For debts or things in Action are not devested out of the Woman into the Husband by marriage yet she cannot make an Executor thereof without her Husbands assent for during her life he may receive them or release them though after her death he shall not be entitled to them unless his Wife make him Executor thereof or after her death he take the Administration of her Goods whereby he then becomes lyable for her debts out of the same when he shall have received them And thus also Chattels real are not so devested out of the Woman into the Husband by marriage but that she surviving him and no alteration made of the property in her life-time by her Husband who had then power to dispose thereof though not by Will they continue to her and remain in her as before marriage yet such a Woman in her Husbands life-time could not without his consent make her Will touching such Real Chattels but he surviving her they would by the operation of Law accrew unto him 5. As without the Husbands consent the Wife may not make her Will so likewise without his consent she may not take upon her the Office of an Executrix But if once the Will be proved and the Execution thereof committed to the Wife though against the Husbands mind and consent probably it may stand good Also the Wives Administring without the Husbands privity though no Will be proved will probably barr the Husband as well as her self from pleading in any Suit commenced against them That she neither was Executrix nor ever Administred as Executrix On the other side if a married Woman named Executrix refuse the Execution of the Will against her Husbands mind and desire it is supposed the Law will not fix the Executrixship upon her against her Will yet the Husband may Administer and Prove the Will for his Wife Also if the Husband no Will being Proved doth Administer in his Wifes right but against her Will This notwithstanding her dissent will so bind her that during her Husbands life she can hardly decline the Executrixship for that by the Law of the Land she cannot be sued alone as Executrix and being sued with her Husband she must joyn in Plea with him whereby the Administration by her Husband will conclude her also but not so after his death for then she may refuse 6. If a Feme Sole make a Will and after take a Husband the same is a Revocation thereof For the making of a Will is but the inchoation or inception thereof which hath no effect till the Testators death Because Omne Testamentum morte consummatum est voluntas est ambulatoria usque ad extremum vitae exitum And therefore it being no perfect Will when she takes a Husband and after marriage her Will being her Husbands and subject to it by her taking a Husband she hath wholly revoked the Will formerly made by her Debt upon an Obligation the Condition was Whereas the Defendant had taken A. S. to Wife who was a Widow being possess'd of divers Goods if he would permit his said Wife to make a Will and to dispose in Legacies so much as she would not exceeding fifty pound and perform what she appointed That then c. The Defendant pleaded that she did not make a Will whereupon Issue was joyned it was found that she made a Will and thereby disposed of divers Legacies not exceeding fifty pound but that she was a Feme Covert at the time of the making of the Will In this Case it was adjudged for the Plaintiff For although she being a Feme Covert could not in Law be permitted to make a Will to dispose of any Goods without the Husbands assent yet it is a Will within the intent of the Condition for it was in the intent of the Condition That she should make a Will to that purpose notwithstanding the Coverture and it is but her appointment which the Husband by his Obligation is bound to perform and the finding that she was a Feme Covert was not in this Case material If a Feme Covert make a Testament and Devise Goods to another and the Husband after her death deliver the Goods to the Devisee accordingly it will bind him A Defendant Covenanted by Indenture with the Plaintiff That whereas he intended to marry E. S. a Widow That he would pay all the Legacies which she by her Last Will in writing bearing date 1 May 20 Eliz. did give and bequeath and was bound by Obligation to perform the Covenants in the Indenture In Debt upon the Obligation the Defendant pleaded that after the making of the Will and the Obligation he intermarried with the said E. S. which marriage continued till her death so the Will and Devise of E. S. was void and demanded Judgement c. And it was adjudged that the Plaintiff shall recover For notwithstanding it was not a Will
own use So that the Executor paying the just value of the Testators Goods to his Creditors may retain the same Goods in his hands which shall not charge the Executor as Assets Finally this is a sure Rule That where no fault is in the Executor there he shall not be bound to pay more for his Testator than the Testators Goods do amount unto 13. Action of Debt was brought against Executors the issue was whether there were Assets in the hands of the Executors the day of the Writ brought it was given in Evidence for the Plaintiff in the Action That the same day the summ of One hundred pound was paid to the Executors in the Prerogative Court and presently by the Order of the said Court the Executors paid the said One hundred pound to another Creditor of the Testator but the Opinion of the Court was in regard the money was once in the Executors hands that payment of it over by the Order of the Court of Prerogative was not to the purpose and therefore the same was adjudged to be Assets in their hands But yet it was holden That upon special pleading of such matter peradventure it might not be Assets in their hands to pay another debt When an Administrator compounds with one who hath a Judgement of One hundred pound for Sixty pound who offereth to acknowledge satisfaction upon Record and the other defers it to the intent to suffer it to stand in force to deceive a Creditor this shall not hurt the Creditor but he shall recover and the money remaining in the Administrators hands-shall be Assets notwithstanding such Composition If I devise Lands to my Executors for Three years for the payment of my Debts and I make Executors and dye this is Assets in my Executors hands But if I Devise my Land to be sold for the payment of my Debts and I make Executors and dye this is no Assets before the Lands be sold Also if an Executor doth make gain of the Testators money the same shall be Assets in his hands It is not requisite that every Assets be a thing in possession or once in the hands of the Testator for a thing may be Assets which was never in the Testators hands if those things come in lieu of the things which were in the Testators hands as money for Land or other Goods sold Also things in Action or Possession certain or uncertain if they be released are Assets the reason is because by such release is given away that which might have been Assets And therefore if Trespass be done to the Testator in his life-time for taking his Goods and he dieth and his Executors release all Actions the same is Assets because it might be proved to the Jury That had the Executors not released but had brought their Action of Trespass de bonis asportatis in vita Testatoris that they might have recovered Dammages which would have satisfied Debts or Legacies and therefore the release of Executors in such Case shall be Assets An Administrator may take the Goods which are given by the Intestate to defraud Creditors for that the gift is void and therefore they shall be accounted Assets Also if a man doth Administer as Executor and then takes Letters of Administration it is at the Election of the party to Sue him as Executor or Administrator If a Testator Mortgages a Lease for years and dies his Executors may redeem it with their own money and the Lease shall be Assets in their hands for so much as the Lease is worth above the summ which they paid for the redemption of it If a Debtee dye Intestate and the Ordinary commit Administration to the Debtor whereby the debt is extinct yet it shall be Assets in his hands as to debts because the Ordinary had no power to discharge the debt as was agreed per Curiam If a Feme Executrix to her former Husband take another to Husband to whom her former Husband was indebted the debt is extinct and shall not be Assets It was held by all the Justices That if a Feme Executrix hath a Term and she take a Husband who purchased the Reversion the Term is extinct as to the Feme if she survive yet in respect of all Strangers she shall account as Assets in her hands Debt against D. as Executor the Defendant pleads Plenè Administravit and issue upon Assets the Jury found that he Administred and had Assets in Ireland And whether that were Assets here they prayed the discretion of the Court and all the Justices besides Walmesley held that it was well found for they may find a thing in Ireland and when they find that he hath Assets that is sufficient and when they further say in Ireland it is idle and vain It was therefore adjudged for the Plaintiff Debt against the Defendant as Executor of J. S. he pleaded Fully Administred c. and upon a special Verdict it was found that J. S. made the Defendant his Executor being then within Age and thereupon the Ordinary committed Administration to A. and B. who Administred and they had in their hands when the Defendant came to his full Age of the Goods of the Testators Six hundred pound and the Defendant at his Age Proved the Will and then released to A. and B. all Actions And it was adjudged that it was Assets Anderson said The doubt was because it was uncertain what he released and for that only an account lyeth but here the certainty appeareth by the Verdict And Piriam said If an Executor doth release an account and it is not certain what he shall recover it is not Assets but if it can appear or be Proved that so much was due it is Assets For the Law presumeth he hath received so much as he doth release and the Plaintiff had Judgement Nota Rhodes said That in 17 Eliz. it was Ruled that where one made his Last Will and thereby willed That none should have any dealing with his Goods until his Son came to the Age of Eighteen years except J. S. that by this J. S. was Executor during the minority of the Son and that it hath been adjudged that when as one upon his death-bed said to his Wife That she shall pay all and take all by this she was Executrix Debt upon an Obligation against one as Executor of A. the Defendant pleads plenement Administravit and issue thereupon the Jury find a special Verdict That A. made E. his Executrix and died possessed of divers Goods which E. made a fraudulent gift of all her Goods to J. S. c. and continued in the possession of them and took the Defendant to Husband and died That the Defendant is possess'd of part of these Goods to the value of c. and paid Legacies and if those Goods should be found to be Assets in his hands they found for the Plaintiff and if c. then for the Defendant
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
made his Testament in writing and Devised the Mannor to his Wife for the Term of 30. Years in these words viz. For and to these Intents and Purposes following viz. I will and my mind and intent is That B. my Wife shall yearly Content and Pay out of the Issues and Profits of the said Mannor to Sir A. I. and others 30 l. And further Wills That the other Legacies given in his Will should be paid by her and therein Devised divers Legacies And further Willed That his Wife should be bound to Sir A. and others for the performance of his Will F. C. the Devisor dies the Wife enters on the Land c. takes the Profits and thereof pays the Legacies but not to Sir A. and others c. Whereupon the Heir Enters as for breach of Condition It was held by the Justices that it was no Condition but a Declaration of the Testators intention for to what end or purpose should the Wife be bound if it were a Condition But Judgment was not given in the Case for the Parties agreed CHAP. XV. Touching Devises of Rents 1. Rents Issuing out of Lands are as Devisable as the Land it self so as it be the Testators own Land 2. A Grantee may not Devise the Rent which he hath only for another Mans Life 3. Rent to be Issuing out of a Common is not Devisable 4. Several ways how Rents may be Devised 5. The Devise of the Reversion of a Rent upon a false suggestion is a void Devise 1. A Seigniory Rent or the like is Devisable as Land is and will pass without the Atturnment of the Tenant So that a Man may Devise a Rent de novo issuing out of Land or a Rent issuing out of Land that is in esse before And therefore if one make a Lease for Life or Years Rendring Rent the Lessor may Devise this Rent Likewise if a Rent be granted to one and his Heirs the Grantee may Devise this Rent Also a Man that is Seised of Land in Fee may Devise any Rent out of it at his pleasure But a Man cannot Devise a Rent out of another Mans Land that is none of his own nor out of that which he hath not and therefore if one Devise Twenty Pounds to be issuing out of his Mannor of Dale when in Truth he hath no such Mannor that Devise is void 2. If Rent be granted to one Man for the life of another it seems the Grantee may not Devise this Rent but that on failure of other disposal thereof in the Grantees life Time the Terre-tenant shall hold it as an Occupant And if one Devise a Rent of any certain Sum out of his Land to be paid quarterly and say not how long the Rent shall continue this is but an Fstate for life of that Rent 3. If a Man Seised of a Common granteth a Rent out of the Land although that the Land be Devisable yet the Grant is void and by Consequence the Devise 4. If a Tenant for life make a Lease for Years Rendring Rent and after the Tenant for life Surrender to the Lessor all his Right and then the Lessor Devise this Rent this is a good Devise during the life of the Lessee for life Or if a Man make a Lease for life Reserving Rent to him and his Heirs and the Lessor Devise this Rent this also is a good Devise of the Rent otherwise it is if he Reserve the Rent to him and his Assigns Or if a Lessee for Term of Ten Years make a Lease over for Term of 40. Years and the Lessor confirm the Estate Reserving a Rent to him and his Heirs and after by his Will Devise the Rent in Fee this also is a good Devise of the Rent after the Ten Years but not before 5. A Man Seised of a Rent makes a Deed reciting that whereas I. S. holdeth the said Rent of his Grant for Term of life he grants the Reversion of the said Rent after the decease of I. S. to the Grantee and his Heirs in Fee and in Truth I. S. had nothing in the Rent the Grantee Deviseth this Rent this is no good Devise of the Rent If the Husband make a Leafe for life to the Daughter and Heir apparent of his Wife being Covert Rendring Rent and the Wife-Mother die and the Husband Devise the Rent this is a void Devise of that Rent In an Action of the Case upon Trover the Defendant justified and pleaded Rent granted to A. his Executors and Assigns for the life of B. out of Black-acre and shewed that A. was dead and that he as Administrator to A. distrayned for the Rent on Black-acre in Arrears after the death of A. and that he is to have it during the life of B. It was Adjudged That the justification was not good either for matter or manner for that after the death of A. the Rent determined and cannot come to his Executors or Administrators for it was not a Thing Testamentary but a Frank-tenement and nothing in the Grant to A. and his Heirs for the others life If Rent be granted out of Land Devisable by Custom the Rent may be Devised within the Custom for it is of the same nature with the Land CHAP. XVI Of Devises touching the Sale of Land by Executors or others 1. The mean Profits of Lands Devised to be sold are not Assets in the Executors hands unless the Testator shall specially so Appoint it 2. The Heir and not a stranger though appointed in the Devise shall take the advantage of a Breach of Condition annexed to a Devise touching sale of Lands 3. Where the Executors have only an Authority and not an Interest in the Lands Devised to be sold the Heir of the Devisor shall have the mean Profits thereof till it be sold 4. Otherwise where the Executors have an Interest in which case the Money or Proceed upon the sale but not the mean Profits shall be Assets in their hands 5. Several Devises touching sales of Land with or without the Assent of another 6. By the word Appurtenances shall pass in a Devise Lands commonly used with a Messuage 7. A Copy-holders Case of Devise of Land to his Wife 8. Where one who hath but an Estate for life and no Interest to sell may yet have an Authority to Appoint who shall sell the Lands Devised 9. In what Case relating to this matter a Prohibition may Lye or not 10. A Case of Law wherein one Executor alone where there are two can not sell the Land Devised 11. How a sale of Lands Devised to be sold may be void for want of sufficient Authority 12. In what case a Sale of Lands Devised to be sold may be made by one Executor where there are two Appointed by Name 13. Where there is an Interest as well as an Authority and Trust the Executor of the surviving Executor may sell the Lands of the first Testator Devised to be sold 14.
Anne she shall have both And this is the Common opinion from which notwithstanding there are not wanting and they not of the minor DD. who recede in their Judgments and held That a Disjunctive in a Legacy ought to retain its force so as the Executor may be least burdened which seems nothing inferiour to Reason in an impartial ballance yet this may be relyed on as indubitable that where the Disjunctive is placed between two such things as are commonly conceived under the notions of Genus and Species or between the whole and his part then and in such case it shall be taken for a Conjunctive as if the Testator should say I bequeath to my Wife my Plate Jewels or such things as I provided for her the latter words whereof are Generical the former Specifical she shall have both Or if he saith I bequeath to my Wife my Wine which is in the City or in the Port the Port is held as part of the City and she shall have the Wine in both Likewise if any thing be bequeathed to D. E. or F. G. here in this case also the word or shall be taken for the Copulative and so that both of them shall equally take by this Devise unless the one be of nearer kin to the Testator than the other in which case the nearest of kin shall have it for his life the other afterwards or unless it can be proved that the Testator did bear more affection to the one than to the other in which case he to whom the Testator did bear most affection shall be preferred or unless the one of them is not legally capable of the Legacy in which case the word or shall stand as properly it is for a Disjunctive One Devised his Lands to his three Daughters and said further in these words viz. I will that every of them be others Heir by equal portions Whereupon it was doubted when one of them dyed whether the others should hold by survivorship as Joynt-Tenants Or in this case as Tenants in Common The whole Court was of opinion for the latter and not as Joynt-Tenants for that it appear'd the intention of the Donor was such in saying That each should be others Heir by equal portions which could not be if there were a survivor for thereby it is not possible the words of the Will can be of any force Although properly Houses pass not by the name of the Lands yet in a Devise they shall pass by the Name of all the Lands if the intendment be not otherwise by some Expressions of the Devisor for though in a Writ nothing shall be demanded or recovered but according to its proper signification yet in Wills Expressions shall be taken according to the Common intendment Wherefore in a Will by the Devise of his Land all his Houses may pass or not according as it is phrased by the Devisor For if a man Devise all his Lands his Houses shall pass but if he restrain the word Land according to its genuine propriety as Arable Land or doth couple it with Meadow and Pasture in such case the exposition of the word shall be taken according to the common intendment of the Devisor or having both Houses and Lands in A. and B. doth say I bequeath to C. all my Houses and Lands in A. And to D. all my Lands in B. In such case and by such expression the Devisor seems to exclude the Houses in B. out of the Devise to D. which expresly he includes in the Devise to C. Moore succinctly Reports the case thus viz. Debt for Rent the Defendant pleaded nihil debet Whereupon it was found That J. S. being seised of three Houses and other Lands Pastures and Meadows in Watford in the County of Hertford as also of a House and Land in the County of Oxford Devised the same in this manner viz I give all my Capital Messuage in the County of Oxon and all other my Lands and Meadows and Pasture in the Parish of Watford The Devisee brought Debt against the Lessee for years of the Houses in Watford And it was adjudged Maintainable because the word Land comprehends Houses and the Houses shall pass by the Devise CHAP. XX. Cases in the Law touching Legacies of Chattels Personal 1. CHattels Personal may be bequeathed to one for life and afterwards to another in which case the first hath only the use or occupation the other hath only the Propriety thereof So that if one Will that A. B. shall enjoy the use of his Houshold-stuff during his life and after that it shall remain to J. M. This is a good Devise thereof to J. M. But if the thing it self be bequeathed to the first of them then it is otherwise for the gift of a Chattel Personal though but for one hour is the gift thereof for ever Provided the Testator make it Absolute not Conditional 2. Chattels Personal do pass under the legal Notion of Moveables as Chattels Real do under that of Immoveables of both which the Law makes a Distinction into Creatures Living and Things inanimate albeit of the living Chattels Real there can but very few instances be given Such was Wardship in respect of the Tenure of Land As also Villenage for years or that right which the Lord had in the Villain only for a Term who resembled him whom the Civil Law terms Ascriptitius Glebae or one in perpetual Obligation to the Plow on some certain Lands The Real Chattels Inanimate chiefly consist in Houses or Lands or the issues thereof as by Lease for years or by Extent upon Judgments Statutes or Recognizances Or if the Testator had a Term of years in certain Advowsons Tythes Profits of Fairs Markets or Court Leets the Interest is a Real Chattel among the things inanimate likewise a Presentation to a Church upon the next avoidance and before it come to be void is a Real Chattel But of this and Chattels Personal with their respective Individuals the Reader may have a more exact Description if he hath a retrospect to Cap. 6. Par. 3. whereunto he is referred for clearer satisfaction 3. A. B. having two Brothers and one Son makes his Son his Executor and in his Will saith That he would have his Son let the said two Brothers who are the Sons Uncles have all the goods he hath in D. and M. or elsewhere saying withall That all these things he doth leave them for this Reason because he would not that his Son should have any Difference or Controversie with them In this case and by this Devise A. B. seems to leave his two Brothers only what was in common between him and them and no more This interpretation being grounded on the Reason annexed at the close of the Testators words where he saith Because his Son should have no difference or Controversie with them by which Reason he seems to have a prospect of Differences like to arise between him and