Selected quad for the lemma: judgement_n
Text snippets containing the quad
|
ID |
Title |
Author |
Corrected Date of Publication (TCP Date of Publication) |
STC |
Words |
Pages |
|
A51777
|
[An appendix to the office and duty of an executor.]
|
Manley, Thomas, 1628-1690.
|
1676
(1676)
|
Wing M442; ESTC R204050
|
25,140
|
71
|
on such condition upon the first refusal the Executor or Legatary will have a right Condition is he or she marry according to the appointment arbitrement or consent of A. the condition is unlawful but the Legacy is good though the marriage be without such consent Condition is that thou marry not a Widow or this or that particular Woman is good and if thou perform it not no Executorship or Legacy shall pass because thou hast liberty besides A Legacy is given upon condition that thou marry the Testator 's Daughter thou must not marry first another Woman and afterwards her for it is a condition affirmative and intended to be meant of first marriage and so the Legacy is void But in negative conditions as if thou do not marry the Testator 's Daughter here if thou marry two or three and her at the last yet the Legacy is good for here not the first Act alone but all subsequent Acts are regarded A Condition in respect of place is good As that one shall not marry at York for he is at liberty to marry elsewhere Land is given to a Man and the Heirs of his body on condition he nor his sell by Feoffment c. Here if he or his Heirs sell the Donor or his Heirs may enter for this is in favour of others and herein the Common Law and the Ecclesiastical agree Prohibition in a Will to sell a Cup Ornament Gift of a Prince Prize got in War c. is good unless the Goods will not amount to pay Debts or if it be so far from him that he cannot have profit or use of it he may sell it or if he be the last to whom it is limited One by his Will giveth A. the residue of his Goods and makes him Executor on condition he do not sell the same A. must enter into Bond not to sell before he can be admitted Executor which Note As to time when conditions are to be performed when no certainty thereof is expressed it must be done as soon as with conveniency it may after the Testator 's Death A. makes B. Executor on condition that he give 10 l. to the Poor he may do it at any time in his life but the Ordinary may appoint the time and if he fail may grant Administration But a Legacy given on condition that he give 10 l. to the Poor he must do it as soon as he is able after his Testator 's Death or else he will lose his Legacy There are also casual Conditions as if a Ship come from Venice thou must attend and if it come in thy Life good but if thou dye before thy Executor cannot have it though it return after thy death Condition is if such a one dye without issue this is much to be taken notice of for a Bastard shall not be deemed issue though the Parents inter-marry after the birth and such are issue natural not lawful nor may they inherit But if A. have issue by B. his Wife this is lawful not natural so if one marry a Woman with child by another albeit born the next day yet the Husband must be Father For whose is the Cow his is the Calf If a Wife cohabit with an Adulterer yet if it be possible that the Husband may come to her the Husband shall be presumed the Father nay though the Wife own the Adulterer and the Child be like him for that might happen by the Mothers conceit at Conception so Jacob's rods Ethiopian picture c. but if the Husband were not at the time of Conception within the four Seas or far distant or imprisoned it will be judged otherwise Also if disabled by Nature or old Age. In no case such Children shall inherit If a child be born alive and heard cry the Father by the courtesy of England shall have the Land for his Life otherwise if it were an absolute abortion Remedy for Creditors and Legataries during the suspence of the Condition For they are due presently therefore it is provided by the Statute of 21 H. 8. and 32 E. 3. that Administration be granted to the Executor for so long time as the condition depends If a Condition be delayed to be performed by an Executor it being in his power it is his fault and he shall be excluded An Action against an Administrator shall abate if there be an Executor which will prove a Will after the Administration granted The Ordinary may appoint a time to every Executor at the petition of Creditors to prove the Will and if he refuse Administration may be granted unto such as have interest until the condition be extant or he may grant a Letter ad tollendum bona defuncti but upon such letter an Action will lye against the Ordinary as it might have done against the Administrator yea though such one sell bona peritura he may be sued as Executor in his own wrong Ten pound a year given to one by a Testator till his Son attain 21 years of Age is good till he should attain though he dye in the mean time If the Executorship be only limited and the time of Age not joyned to the substance as I give to A. 100 l. and I Will the same be payed when he comes to 21 years of Age and he dye in the mean time yet the Executor or Administrator shall recover it And Executor may be particular as of his Goods c. in York-shire or Universal as of all his Goods the particular Executor is only chargeable so far as he Administers and cannot meddle with the rest But if one make A. an Universal Legatary or give him the rest of his Goods and make no other Executor he shall be deemed Executor at least Administration may be granted to him Two are made Executors one dieth his Executor may not joyn with the first Executor in the execution of the Will and if such Executor of Executor have any of the Testator 's Goods the first Executor may have an Action for them and if the surviving Executor dye intestate yet the Executor of the Executor cannot meddle Also if one Executor be a Babe or beyond Sea the other is admittable in the mean time If all or one Executor refuse to undertake the Executorship the other may sue or be sued But first there must be summons and severance but if the refusing Executor afterwards become willing he may joyn with the Executor and be admitted and if he release a debt due to the Testator it is good so it be released before judgement One releases a debt due to A. and aftrr takes Administration of the Goods of A. the release is void for that there was no right of Action at the time when it was executed Two or more Executors are named all refuse but A. and he proves the Will and after maketh B. his Executor and dyes the rest who refused may not joyn with B. but he may sue or be sued alone for the first Testator 's Goods Bro.
Executor may recover or distrain for Rents Fee-Farms Annuities and Arrearages as his Testator might have done Also the Husband may do the like for rent due to his Wife she being dead An Executor of an Executor in all cases may sue for the first Testator 's Goods and be sued for his Debts as the first Executor might neither shall the Goods of the first be put in Execution for the second Testator 's Debt but those Goods must come to the second Executor by relation and thereby the property of them which was before in the first Executor is conveyed to his Executor A. being Administrator to B. names C. his Executor and dyes C. may not meddle with the Goods of B. but new Administration shall be granted to the Friends of B. If an Executor after due admonition given refuses to prove the Will he shall lose his Legacy but contrary if he were not summoned to stand to it Neither doth a Wife lose her thirds nor Children their filial portions by refusing to prove the Will. A Wife Executrix cannot sue or be sued without her Husband but she may do any extrajudicial act as receive or release Debts or pay Legacies without her Husband But if she dye he can no more meddle And such Wife Executrix may make her Will and name an Executor If there be three or four Executors two or one may release any Debt without his companions unless it be upon Judgement But it is not so with Administrators for they have but one Authority given them by the Bishop over the Goods which Authority being given to many is to be executed by all of them together An Executor must pay Debts before Legacies else if thereby arise a want of payment of Debts he shall pay out of his own Estate Here note that of Debts some are to be preferred before others Cro. Eliz. 646. as Judgement before Recognizance c. 5 Rep. 28. Harrison's Case Leon 3.270 Bond and Bayl's Case So some Legacies are to be preferred 28 29 H. 8. Dyer 32. 4 Eliz. Dyer 280 or 208 Dyer 7 Eliz 232. As to the time for proving a Will it is Arbitrary first year or second Time. or when it shall please the Ordinary to send a citation The duty of the Executor is to prove the Will pay the Testator 's Debts Office. and Legacies and make an account for the residue and therefore the Inventory ought to be made before the Executor meddle with the Goods Into which Inventory are to be put Goods Chattels Merchandizes all Rights and Leases Emblements Corn growing but not Grass or Trees growing for those belong to the Heir so do things affixed to the Free-hold also Glass in Windows nailed or not nailed Wainscot and the like but all other Goods and Chattels are to be put into the Inventory and the Ordinary may appoint a time to bring in the Inventory See the Stat. 22 23 Car. 2. Cap. 11. But an Executor meddling with Goods unless for Funerals c. not having made an Inventory is subject to Ecclesiastical censure although the Acts done by him before Probate are good in Law. Testaments are to be proved before the Bishop of the Diocess except in certain Seigniories or Jurisdictions or where there are bona notabilia in divers Diocesses and good Debts amounting to 5 l. due by one or more in some other Diocess or particular jurisdiction yet within that Province do make bona notabilia as well as Goods and Chattels real or personal If the Metropolitan pretend that a Man within any Diocess of his Province dye possessed of bona notabilia where indeed he hath none and grant Administration therefore of the Goods this is not absolutely void because the Metropolitan hath Jurisdiction in all Diocesses within his Province yet nevertheless it is voidable But if the Ordinary of a peculiar Jurisdiction grant Administration of the Goods of one dying possessed of bona notabilia this is absolutely void even for the Goods in his own jurisdiction for the Prerogative Court ought to grant the same A Will is to be proved two wayes the 1. in Communi forma and here no person is cited but the Executor makes Oath that it is the Testator 's last Will. Or 2. In form of Law and this must be done per testes wherein there must be publication and a definitive sentence A Will proved in common form in absence of them which have interest the Executor is compellable to prove the same again in form of Law and if the Witnesses de dead it will endanger the whole Testament unless 10 years be past since the Probate But being once proved in form of Law no more to be drawn in question Fees due for Probate of Wills are if the Goods be under 5 l. six-pence to the Register if above 5 l. and under 40 l. three shillings six-pence to the Ordinary and to the Register one shilling If above 40 l. to the Ordinary 2 s. 6 d. and as much to the Register by 21 H. 8. For the copy of the Will and Inventory no more than was payed to the Register for Probate or a penny for ten lines at the Register 's Election upon forfeiture of the overplus taken and 10 l. to the King and the Informer The course of Debts in order to payment we have already spoken of we shall only here note that if there be divers Obligations the Executor may pleasure which of the Creditors he pleaseth first and the other have no remedy though Assets be wanting Doctor and Stud. Lib. 2. Cap. 10. If two commence Suits for several Debts he that first obtains Judgement shall first be paid an Executor may plead a dilatory plea as in abatement of the Writ by Essoyn imparlance to one and then another commence a Suit to whom he confesses a Judgement that Judgement shall be satisfied first though the others Suit was commenced before But an Executor may not plead a false plea to delay him that first commenced Suit. Doctor and Stud. Lib. 2. Cap. 10. Mortuaries No Mortuary is to be paid under ten marks in moveable Goods upon forfeiture upon surplus and 40 s. to the party grieved by 21 H. 8. neither is it payable but where accustomed and due but in one place where the party was most inhabiting Above ten marks clear his Debts being paid and under 30 l. shall pay for a Mortuary 3 s. 4 d. between 30 and 40 pound 6 s. 8 d. above 40 l. shall pay 10 s. and this is to be paid before a Legacy without defalcation Account It is necessary that an Executor make his account and procure his discharge by Acquittance or otherwise for he is subject to be called to an Account judicially both by Creditors and Legataries and that within a year or when the Ordinary pleases wherein he must declare what Goods and Chattels have come to his hand what Debts and Legacies he hath paid in which lesser sums may be proved by his own