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
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.
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
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
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
him a Legacy upon condition that he marry with the consent and according to the good liking or appointment of some other person this condition is unlawful Insomuch that if such Executor or Legatary marry contrary to such restraint or condition he shall notwithstanding be admitted to the Executorship and receive the Legacy as if no such Condition had been expressed 2. Notwithstanding what hath been said the Condition holds good if the Testator make one his Executor or give him a Legacy if he marry not without the Counsel or Advice of another person so that the Testator giving him a Legacy if he marry with the Counsel or Advice of another person he is excluded from the Legacy if he marry without such Counsel or Advice yet in this case he is not bound to follow such counsel or advice but only to request the same Again although the condition of marrying with the consent of another is void so as the party on whom such condition is imposed may obtain the Legacy without such consent yet marry he must or he cannot obtain the Legacy for although the condition of such Consent be unlawful yet must he marry before he can pretend to the Legacy because that part of the Condition is not unlawful CHAP. XVI Of the manner of Proceeding during the suspence of the Conditions 1. The Condition depending Administration may be committed to the Conditional Executor 2. The Law what in case the Condition be not performable by the Executor on whom it is imposed 1. THat Creditors and Legataries may have Remedy during the suspence of the Condition of the Executorship or Legacy it is lawful for the Judge to commit Administration to him that is conditionally assigned Executor yet only for so long time as the Condition dependeth and is not extant or else deficient and when the Condition is extant he may Prove the Will and detain the Goods of the deceased as Executor to the Will but if the Condition be infringed or utterly deficient then ought he to make restitution to the next of Kin to the deceased or to those to whom belong the Administration of his Goods for by breach or defect of the Condition the deceased is reputed to have died intestate or as if he had never made an Executor And the former Administration being forfeited a new may be committed But if the Conditional Executor will not meddle with the Administration of the deceased's Goods when the Condition is performable then may the Judge assign the Conditional Executor a competent time for the accomplishment of the Condition within which time if it be not performed by him and if it be within his power it may be imputed for infringed or deficient Provided that other time for the performance of the Condition be not assigned in the Condition it self And in case of such infringement or deficiency Administration may be committed according to the Statute as of one dying intestate But if the Judge knowing of this Will doth commit Administration to some other without the Executors knowledge or without appointing him some competent time for the accomplishment of the Condition then is the Administrator in hazzard of being sued by the Executor in an Action of Trespass unless the Executor did formerly refuse 2. If the Condition be such as that it doth not lie in the power of the Executor to perform the same then may the Judge at the Petition of the Creditors assign a time to such conditional Executor to undertake the Administration of the Goods which if he neglect or refuse then may the Judge after such time elapsed commit the Administration to such as have Interest untill such time as the Condition be either extant or deficient or else as some think the Judge may grant a Letter ad Colligendum to some other person than the conditional Executor But then Note that such person as hath such Letter ad Colligendum not being Administrator the Actions which otherwise might be brought against the Administrator may now lie against the Judge And though the Judge may grant his Letter ad Colligendum yet he hath not power to give Authority to sell any of the said Goods though perishable And if such person to whom such Letter ad Colligendum is granted should by vertue of such Power sell any of such the said Goods he is suable as Executor to his own wrong CHAP. XVII Of Testaments void 1. By what means Testaments are void Originally 2. By what means they become void afterwards 3. Law-Cases pertinent to this matter 1. A Testament may be Originally void or voidable wholly or in part through some original defect as thus First because the Testator is such a person as cannot make a Testament Secondly because the things bequeathed are not deviseable by Will Thirdly because the manner of the disposition is unlawful Fourthly because the person made Executor is uncapable thereof Fifthly because the Testator was compelled by fear or circumvented by fraud or overcome by immoderate flattery or induced by some other unlawful means to make his Will Sixthly because of errour uncertainty or imperfection Seventhly because the Testator had not Animum Testandi 2. A Testament though free from all Original fault may yet afterwards become void As first by making of a later Testament Secondly by cancelling or revoking that which is made Thirdly by some alteration of the state of the Testator Fourthly by forbidding or hindering the Testator from making another Testament or from correcting the former Fifthly by unwillingness or inability of him that is appointed Executor when he will not or cannot officiate as Executor Sixthly when the Executor cannot be certainly known there being divers men of that name and no distinction made this uncertainty of the Executor maketh void the Will Seventhly when the Testator doth err in the person of the Executor but in an errour of the Name only and not of the Person it is otherwise save in certain Cases hereafter limited Thus a Testament though free from all Original fault may yet afterwards become void but a Testament originally void can never afterwards be made good 3. Errour upon a Judgment given against the Plaintiff in C. B. on a Formedon in Remainder upon special Verdict and found that D. gave instructions for the writing of his Will to give his Lands to one of his Sons for life and the Scrivener by mistake wrote an Estate in Fee and the Court agreed that the Will was utterly void because it was not the Will of the Testator Yet it seem'd to Fenner Justice that for so much as it may be it should be that is for an Estate for life which was his Will but all the other Justices were against him In the Court of Wards between the Co-heirs of Sir William Rider it was declared by Coke Chief Justice of
in Reversion whereof no Entry can be made nor can any man therein be Executor of his own wrong and therefore the first Sale to Burgess before Administration is utterly void At the Kings Bench in Debt all the Justices of England being Assembled at Serjeants Inn it was Adjudged That an Executor of his own wrong cannot pay himself either Debt or Legacy Debt against one as Executor the Defendant pleaded that the deceased died Intestate and that certain of his Goods came to the Defendants hands and that Administration was committed to J. S. to whom he delivered the Goods It was adjudged no Plea in regard he had once made himself chargeable to the Plaintiffs Action as Executor of his own wrong he shall never discharge himself by matter ex post facto Note in an Action of Debt brought against A. as Executor in his own wrong he pleaded ne unque Executor and it was found against him and Execution was awarded against him for the whole debt viz. Sixty pound for his false Plea although in truth he had not intermedled but with one Bedstead of small value and so it was said it was adjudged 40 Eliz. in C. B. in Kitchin and Dixons Case CHAP. IX Of a Child in the Womb made Executor and of an Infant-Executor as also of an Executor and Administrator durante Minoritate 1. Whether the Child in the Womb may be made Executor 2. At what age an Infant-Executor may Administer 3. What Acts may or may not be done by an Infant-Executor 4. To whom the Right of Administration doth belong durante Minoritate 5. Divers Cases Reported in the Law pertinent to this Subject 1. THe Child in the Womb may be made Executor insomuch that when such is so appointed if the Mother bring forth Two or Three Children at that one Burthen they are all to be admitted Executors The Law is also the same as to a Legacy given in like manner which is to be equally divided amongst them 2. Though an Infant how young soever he be may be Executor or unborn as aforesaid yet the Execution of the Will shall not be committed to him until he attain the Age of Seventeen years for Administration granted durante Minoritate ceases when the Infant-Executor attains to that Age of Seventeen years And if it be a Female-Infant and married to a man of Seventeen years of Age or more it is then as if her self were of that Age and her Husband shall have the Execution of the Will and Administration thereof This limitation of Seventeen years comes in by the Canon not by the Common Law 3. Although an Administration granted durante Minoritate doth as aforesaid cease when the Infant-Executor doth attain to the Age of Seventeen years yet betwixt that Age and the Age of Twenty one years such Executor cannot Assent to Legacies howbeit upon satisfaction really made he may release a debt due to the Testator for although his Actings unconformable to the duty and office of an Executor bind him not yet such acts as are conformable to such an office done by him during his Minority that is till he be of the Age of Twenty one years for till then the Common Law holds him a Minor are binding and good in Law 4. Until the said Age of Seventen years the Administration is to be committed to some other as to the Father or to the Guardian or Tutor of the Child who during such Minority cannot sell or alienate save in cases of necessity nor Set a Lease for a longer term than the Executors Minority 5. E. R. Executor of W. R. brought his Action on the Case against T. P. supposing that divers of the Testators Goods came to the Defendants hands c. In which Action the Defendant pleaded a Release from the Plaintiff Whereunto was replyed That the Plaintiff was within Age at the time when he gave such Release and whether such Release was a bar upon a demur in B. R. was the question where it was adjudged that it was a void Release The matter was after removed and brought before the Justices in the Exchequer Chamber by a Writ of Errour where all the Justices of the Common Pleas and the Barons of the Exchequer held That the Judgement in that point was good and that it was no Errour for they said that an Infant-Executor cannot Acquit Release or Discharge a Bond without receiving the money due thereupon otherwise he might through his own folly or ignorance charge himself of his own proper Goods which is not allowable in an Infant to do by a Release or Acquittance without some other Act but if upon a single Bond or Obligation he receive the money and make an Acquittance or Release they held that was good and the Infant should be bound thereby but by other means the Obligation could not be discharged and they all held That when a single Obligation is made to an Infant and he during his Infancy receive the money and make an Acquittance he shall be bound thereby Action is brought against the Defendant as Administrator of J. S. during the Minority of D. Issue joyn'd and found for the Plaintiff It was alledg'd in Arrest of Judgment That the Declaration was not good because non constat whether D. were Seventeen years of Age at the time of the Action commenced at which time the Defendant-Administrators Authority is determined but it was adjudged That the Plaintiff is not to shew or set forth that matter 1. Because the Plaintiff is a stranger to the Defendants power 2. Because the Defendant by joyning issue hath admitted that his power continues Biss makes Katherine his Wife and John his Son aged one year his Executors K. Proves the Will alone and marries the Plaintiff and they without the Son bring Action of Debt as Executors against the Defendant who pleaded in abatement of the Writ that John was made Executor with Katherine and that he was yet alive not named c. The Plaintiff replyed That John was not above one year of Age that Katherine had Proved the Will and had Administration committed to her during his minority c. Whereupon Yelv. demurr'd and adjudg'd for the Defendant quod Billa cassetur for that in truth they are both Executors and ought to be named in the Action and albeit that Katherine by the Administration committed to her durante Minori aetate hath the full power yet the Infant ought to be named for that she hath affirmed him to be an Executor Debt as Administrator to A. L. durante minori aetate W. L. the Executor upon an Obligation and averrs that W. L. was within the Age of Twenty one years The Defendant pleaded an ill Bar and it was thereupon demurr'd but because the Court was resolved upon Conference with divers Civilians openly in Court That the power of an Administrator durante minori aetate doth cease at the
Executors Age of Seventeen years and that Administration committed after that Age of the Executor is meerly void and notwithstanding this averment here the Executor might be above the age of Seventeen years and within the age of Twenty one years It was therefore adjudged Quod Quaerens nihil caperet c. 5. Co. 29. Trespass upon a special Verdict the Case was Jackson Lessee for years by several Leases of divers Lands some of them in the Diocess of York some in another Peculiar in the same Diocess devised all these Leases to his Son and made his Daughter within Age his Executrix the Mother takes Administration durante minori aetate of the Executrix in F. the Peculiar where the Testator died ad Commodum proficuum Executricis the Administratrix granted this Term durante minori aetate of the Executrix to the Plaintiff Whether the Grant were good or not was the principal Question The Court resolved that it was not good For such an Administrator hath but a special property ad proficuum Executoris but not a general property as another Executor or Administrator hath and therefore his sale of Goods unless they be Bona peritura or it be for necessity for the payment of debts which he is chargeable to pay it shall not bind But he may sue and be sued and yet his Authority is but a limited Authority and therefore like as if Letters ad Colligendum bona Defuncti were granted to one there he may sell bona peritura as Fruit or the like 2. It was moved whether the Assent of an Administrator durante minori aetate to the devise of a Term or the Assent of the Executor himself during his minority to such a Devise be good Anderson said That an Executor at the Age of Eighteen years may Assent but whether the Assent by such an Administrator be good or not they doubted 3. It was moved whether Administration should in this case be granted at Two places viz. the one within the Peculiar the other by the Arch-Bishop of York Ordinary of the Diocess or whether he should have the Prerogative in both as he had where Bona Notabilia were in divers Diocesses And it was resolved That there should be two Letters of Administration granted for the Arch-Bishop shall not have any Prerogative here because this Peculiar was first derived out of his Jurisdiction wherefore c. 5. Co. 29. Errour of a Judgement in Debt in C. B. The Errour assigned was because the Plaintiff sues by an Atturney where he was an Infant and ought to sue by Guardian But because the Action was brought by him as Administrator so that he sued in auter droit Infancy is no impediment unto him no more than Out-lawrie and therefore he might well sue by Atturney and it was thereupon adjudged for the Defendant that the first Judgement should be affirmed Note that if an Infant sue and not as Executor he must then sue by his Guardian vid. Case Bartholomew vers Dighton Hill 37 Eliz. B. R. in Cro. Rep. part 1. Pl. 22. Debt upon an Obligation made to the Testator The Defendant Pleaded a Release made by one of the Plaintiffs The Plaintiff replyes That this Release was made without any consideration and he who Released was within Age at the time of the Release made and it was thereupon demurred and adjudged for the Plaintiff that it was a void Release being by an Infant without consideration In the Case between A. and M. as Administratrix of J. during the minority of L. It was among other things Objected That the Plaintiffs Declaration was not good because it is brought against her as Administratrix durante minori aetate of L. And it is not averr'd that the said L. was yet within the age of Seventeen years sed non allocatur for true it is that if one brings an Action and entitles himself as Administrator durante minori aetate of one such he ought to shew that he is yet within the Age of Seventeen years as Co. 5. fol. 59. Pigots Case For that he is to take Conuzance how long his Authority shall continue and he ought to shew it to enable himself to the Action But when he brings the Action against one as Administrator durante minori aetate there such Plea need not be shewn for so long as the other continues his medling he shall be sued and the Plaintiffs need not take Conuzance of the age of the other as c. And here if her Authority were determined it should be shewn on the Defendants part therefore the Judgement was affirmed Note it was resolved by all the Justices of England That the Release of a Debt or a Duty by an Infant Executor after Probate made of the Will is not good because it should be a Devastavit and charge the Infant of his own Goods and also it should be a wrong which an Infant by his Release cannot do and also because it is not pursuant to the Office of an Executor Infant Executor Administration was committed durante minori aetate debt was brought against the Administrator and then the Infant came of full age and the Justices very much doubted whether the Action did abate A Guardian Recovered a debt on an Obligation made to an Infant the Defendant paid the Principal and Costs and prayed that the Guardian might be ordered to acknowledge satisfaction The Court said That a Guardian or an Infant or Executor may not acknowledge satisfaction for more than they receive and for so much they ordered the Guardian to acknowledge satisfaction And made an Order that no Execution should issue for the residue If an Administration be repealed from one and granted to another which was only durante minori aetate and that other bring the first Administrator to account and after give him a Release yet the Infant at his full age may compell the first Administrator to account to him again and the former account to such second Administrator shall not Bar him for such Administrators Release is not good unless for some such cause as for which it ought to be made It was by the Chief Justice of the Queens Bench demanded of the other Justices there Assembled upon hearing of Causes If one make an Infant his Executor that Releases a Debt due to him as Executor without receiving the summ due which receipt if it be good will be a Devastavit by the Infant of the Goods in his hands whether such Release shall bind the Infant or not It was agreed by them all That such Release is void for an Infant by his own Laches and Folly shall not prejudice himself Yet a Feme Covert Executrix may receive money without her Husband which was due to her Testator and give an Acquittance for the same and if she gives an Acquittance for debt which causes a Devastavit the Release shall be good and the Wife and Husband bound thereby the reason is
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
they both live but after her death it may be otherwise yea and if a void Administration happen to be committed and the Administrator wast the Goods and then Administration be committed to another in this case the former Administrator may be charged by the Creditors for the wast done in his time 4. But for an Executor or Administrator without fraud to sell the Goods of the deceased under value especially where more cannot conveniently be made of them is no wast Nor shall one Executor or Administrator be charged for the wast done by another for where there are many joynt-Executors if only one of them doth commit the wast he alone shall suffer for it So the Executor or Administrator committing Wast in the Gift or Sale of any of the Goods of the Defunct shall answer it alone and not he to whom the Goods are so given or sold yet the Executor or Administrator of such an Executor or Administrator shall not be question'd for it after his death Also an Executor or Administrator may lawfully sell or convert the deceaseds Goods to his own use so as he convert the money thereof to the deceaseds use in payment of Debts or the like and pay so much of his own money as the Goods so converted to his use are worth and this shall not be imputed to him as a Wast Yea he may sell any special Legacy that is bequeathed and even this shall be no Wast in him though it be a wrong to the Legatee in case there be Assets to pay Debts besides But when he hath enough to pay all the Debts and Legacies then he may dispose of the whole Estate how he please without any prejudice to himself or others And note That the wasting Executor doth not incurr dammage or make his own Goods lyable for satisfaction for the Wast further than the value of the Testators Goods so wasted or mis-administred doth amount unto An Action of Debt was brought against Two Executors one appeared and confessed the Action the other made default and Judgement was given to recover de bonis Testatoris in both their hands whereupon a Scire Facias issued The Sheriff returned Nihil but he who made default had wasted the Goods upon which a Scire Feci issued against him who had wasted the Goods and upon Return of the Scire Feci Execution was awarded of his own proper Goods only without his Co-Executor 5. If the Executor confess he hath Assets supposing the Executor to be Defendant then may the Sheriff Return a Devastavit If the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Dammages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Dammages as was formerly shewn of the Executors or Administrators own Goods And if the Sheriff upon a Scire Facias Return a Devastavit then a Fieri Facias or Elegit may be sued out to levy the Debt and Dammages of the Executors or Administrators proper Goods And if the Executor plead That he never was Executor nor Administred as Executor and it be found against him that he had Administred but one penny the Judgement shall be to recover the Debt and Dammages of the Executors own Goods And in a Case of Debt brought upon a Record the Execution shall be brought where the Record remains Judgement was given against B. in a debt of One hundred pound in C. B. After the said Judgement he entered into a Statute to J. S. and died Intestate his Wife takes Letters of Administration and removes the Record of the said Debt recovered against her Husband into B. R. by Errour depending the Sute she payes the Debt due upon the Statute to J. S. Afterwards the former Judgement is affirmed On a Scire Facias against the Administratrix to have Execution she pleaded payment of the said Statute beyond which she had not Assets Upon this the Justices of the Kings Bench were divided viz. Popham and Gaudy against Fenner and Yelverton It was referred to the Opinion of the other Justices they joyned in Opinion with Fenner and Yelverton and judged it a good Plea and that the paying of the Statute was no Devastavit for at the time of the Execution of the Statute she could not plead the Judgement of C. B. it being then doubtful whether it would be affirmed or not therefore no default in the Wife-Administratrix in paying and discharging the Statute for she could not have an Audita Querela nor any other Remedy to be freed from payment of the Statute at the time of the Execution thereof CHAP. XXVII Of the Executors power in Sale of Lands devised to be sold 1. The difference between a Devise that the Executors shall sell the Land and a Devise of the Land to the Executors to be sold 2. The profits of Land Devised to be sold are not Assets in the Executors hands for a time before such Sale 3. In what Case the Heir may or may not enter upon unsold Lands devised to be sold 4. Executors accepting may without others Refusing make a good Sale of Lands devised to be sold 5. In what Case surviving Executors cannot sell Lands devised to be sold 1. WHere Land is by Will appointed to be sold neither the money raised nor the profits shall be accounted as any of the Testators Goods or Chattels And when a man deviseth that his Executors shall sell the Land there the Land in the mean time descends to the Heir and until the Sale be made the Heir may enter and take the Profits But when the Land is Devised to his Executors to be sold there the Devise taketh away the Descent and vesteth the State of the Land in the Executors and they may Enter and take the profits and make sale according to the Devise Also when a man deviseth his Land to be sold by his Executors it is all one as if he had devised his Land to his Executors to be sold because he then likewise deviseth the Land whereby he breaketh the Descent 2. If a Testator doth appoint by his Will his Executors to make sale of certain Lands for the use and behoof of the said Testator and the Lands after the Testators decease happen to remain some time unsold the Profits thereof in the said time before such sale made shall not be Assets in the Executors hands unless the Testator did devise That the mean Profits till the Sale should be Assets in their hands for otherwise they shall not be so though the Executors in this Case have no Estate or Interest in the Land but only a bare and naked Power and Authority 3. But if the Executors having power to sell the Land of the Testator defer the Sale thereof after the offer of a reasonable price converting the Profits thereof to their own use the Heir may lawfully Enter to the Land and put out the
Absque hoc that he Administred as Executor or in any other manner and it was thereupon demurr'd and adjudged to be an ill Plea because he doth not say that he refused before the Ordinary nor confesseth any Administration for that which he confesseth is not any Administration and so no answer to the Plaintiff Wherefore it was adjudged for the Plaintiff Debt The Plaintiff as Administrator of J. S. sued upon an Obligation made by the Defendant and had Judgement afterwards the Administration is revoked but notwithstanding that the Plaintiff proceeded and got the Defendant in Execution And upon a motion to the Court it was agreed by the whole Court That the Execution was void and that the Defendant ought to be discharged Quia Erronicè emanavit for that the Letters of Administration being revoked the Plaintiffs power is determined therefore the ground of his sute being overthrown viz. his Commission he hath no Authority to proceed further and the Execution issued without Warrant The same Law per Curiam on a Judgement for an Administrator the second Administrator shall not have Execution thereon for he is not privy to the Record Quod nota Debt The Case was Rent was granted to Baron and Feme for their lives the Rent was Arrear the Baron dies another Rent is Arrear the Feme dies Intestate and her Administrator brings debt for the Arrerages due in the Life of the Baron and after All the Court resolved that it well lay because the Arrerages survived to the Feme as well as the Rent it self But an Exception was taken to the Declaration for that it is alledged that Administration was committed by the Dean of Lichfield and it shews not by what Authority he committed it nor that he was Loci illius Ordinarius and for this cause the Court held the Declaration to be ill for the Court intends not his Authority being special without shewing it But the pleading of Administration committed by a Bishop is good enough without saying that he was Loci ilius Ordinarius for so it shall be intended and so the Presidents warrant it but in a Bar of Replication it is vicious vid. 35 H. 6. 46. Debt brought against C. as Administrator and Judgement thereupon and now moved in Arrest thereof That this Action was brought by an Administrator who shews That Administration was committed to him by the Arch-Deacon but shews not what Authority the Arch-Deacon had to commit Administration and in proof thereof 21 H. 6. 23. and 35 H. 6. 46. were cited And the difference is where Administration is committed by the Bishop or Metropolitan and where by one who hath a peculiar Jurisdiction for in the last case he ought to shew how he hath his power Plowd 297. And although it be after Verdict yet it is not holpen by the Statute of 18 Eliz. cap. 14. being matter of substance and not of form as it was adjudged in Cutts and Bennetts Case but the Court held that it was well enough and they said That the Books are of Peculiars for it cannot be intended that they have any Authority unless it be shewn But the Arch-Deacon is Oculus Episcopi And de Jure Ordinario he is to commit Administration And it was adjudged for the Plaintiff An Executor recovers Debt and dies Intestate the Ordinary committs Administration de bonis non c. The Administrator shall not have a Scire Facias on the Judgement but a new Action of Debt as Administrator to the first Testator who is now dead Intestate A man sets a Lease for years the Lessee Covenants for him and his Assigns that he will not Lop nor Top the Trees during the Term And after the Lessee dies Intestate and the Ordinary committed Administration to J. B. who lopp'd the Trees whereupon the Opinion of the Court was That it was a breach of the Covenant for that an Administrator is an Assign as well as an Executor Administrator brought Debt and declared that Administration was committed to him by A. B. Sacrae Theologiae Professorem and saith not Loci ilius Ordinarium for which cause upon Errour the Judgement was reversed In this Case the Question was whether the Ordinary had power to take a Bond or Obligation of the Administrator to distribute according to the Ordinaries discretion the Goods that should remain after Debts and Legacies paid And it seemed to the Court That such Obligation is not good But in regard the Case was of great consequence Adjournatur Debt brought by J. S. against A. P. Executor of H. W. upon a Bond or Obligation of One hundred Marks the Defendant pleaded he was never Executor nor Administred as Executor whereupon they were at Issue and at a Nisi Prius it was found by a special Verdict That he had received Seven pound Debt due to the Testator and made an Acquittance for the same and took into his possession several particular parcels of Goods of the Testators and converted them to his own use whereupon all the Justices resolved That it was an Administration but at the Request of Sir Anthony Brown they respited the Judgement after the Defendant died and it repented the Justices that they had not given Judgement The Ordinary may grant several Administrations of several parts of the Intestates Goods 10 Ed. 4. 1. b. 18 H. 6. 22. b. 38 Ed. 3. 21. Also he may grant the Administration conditionally as whereas it was before granted to J. S. who is now Out-lawed or a Prisoner or beyond Sea c. he may grant it to another with an Ita tamen That if the said J. S. return into England he shall Administer when he returns If an Executor takes only the Goods which the Testator in his life-time took from him per tort it is not an Administration If certain Goods be devised to a Co-Executor and he take them without the Assent of the other Co-Executor it is an Administration because a Devisee cannot take the Goods devised without the Executors Assent Administration may be committed of the Goods of a Woman Covert who dies Intestate for possibly she might have things in Action which by the Law are not given to her Husband nor after her decease are at all invested in him D. 8 Eliz. 25. 90. Admitt A man possessed of Goods made an Infant his Executor and died the Ordinary committed Administration durante minoriaetate of the Infant to a Stranger The Question was when the Infant came of full Age what Remedy he should have against the Administrator for the Goods It was the Opinion of the Justices That he should not have an Account against him but he might have Detinue against him for the Goods or otherwise Sue him in the Ecclesiastical Court for them Debt against an Executor The Defendant pleaded That he had taken Letters of Administration The Plaintiff replyed That he Administred of his own wrong and after took Letters of Administration It
after Argument at the Bar adjudged for the Plaintiff that it was not any Plea For they at their peril ought to take cognizance of debts upon Record and ought first of all unless for debts due to the Queen wherein she hath a Prerogative to satisfie them and although the Recovery was in another County than where the Testator and the Executors inhabited it is not material But if an Action be brought against them in another County than where they inhabit and before their knowing thereof they pay debts upon Specialties that is allowable wherefore it was adjudged accordingly Vid. 4 H. 6. 8. 21 Ed. 4. 21. Debt against an Executor who pleaded he had reines in ses mains but certain Goods distrained and impownded it was adjudged to be no Assets to charge him The Case was A. Covenanteth with B. to put his Son an Apprentice to C. or otherwise that his Executors shall pay B. Twenty pound A. doth not put his Son an Apprentice to C. and dyeth B. brings debt against the Executors of A. and it was Resolved by the Court That it lyeth not for Two Reasons 1. It cannot be a debt in the Executor where it was no debt in the Testator And if one Covenants to pay Ten pound debt lyeth against him or his Executors as 40 Ed. 3. 28 H. 8. Dyer are but if he doth Covenant that his Executors shall pay Ten pound an Action lyeth not against them 2. The first part of the Deed sounds in Covenant and the second part shall be of the same nature and condition Q. of this Reason Note Assumpsit by the Testator lies against his Executor in Case the Debt riseth upon a Loan and Promise of the Testator to pay and the Promise be for the payment of a meer debt and not to do any collateral Act and where the Testator himself by reason of such Promise could not have waged his Law in such Case his Executor is chargeable but upon a meer collateral Promise of the Testator an Assumpsit lies not against his Executor Such was the Opinion in Q. Eliz. time but now in Reg. Jac. the Opinion of both Courts was and resolved That the Action against the Executor lies as well in the one Case as in the other Scire Facias Sued by H. against W. Executor to his Father for Execution of a Judgment obtained against the Testator The Defendant pleaded Plenè Administravit at the time of bringing the Action and thereupon they were at Issue and the Jury found That the Testator conveyed a Lease in trust to one Fisher against whom the Executor had recovered One Thousand pound in Chancery which was come to the Executors hands Et si super tota materia c. Two Points in this Case were argued at the Bar and Bench 1. Whether the Plea of Plenè Administravit at the time of bringing the Writ were good in that Judgement was given against the Testator in his life-time and it was Ruled that it was not good but that in such Case the Executor should have pleaded There was nothing in his hands at the time of the Testators death because the Judgement bound him to satisfie that debt before others but by the joyning of Issue the advantage of that exception to the Plea was waved 2. Whether the Summ Decreed in Equity in the Chancery shall be Assets and they all agreed it should be Assets because the Jury found that by vertue of the Executorship it was come to the Executors hands 9 Eliz. Dyer 264. And money arising of the sale of Lands by Executors shall be accounted Assets Chapman and Daltons Case Plowd Also Dammages recovered by Executors pro bonis asportatis in vita Testatoris shall be Assets Vid. Pasch 39 Ed. 3. and C. B. Ordinary and Godfreys Case W. And others brought D. against the Defendant as Executor he pleaded Plenè Administravit And it was found by Verdict That the Defendants Wife was made Executrix who to defraud the Creditors had made a Deed of Gift of the Goods before her marriage with the Defendant and yet retain'd them in her possession and took the Defendant to Husband and died and the Defendant had now as much goods in his hands as would suffice to pay the Creditors their debts And the Court adjudged for the Plaintiff for that the Defendant confess'd himself Executor by pleading Fully Administred and therefore is chargeable because the property of the Goods passed not out of the Wife by that Grant being fraudulently made as aforesaid by the Stat. 13 Regin One sued an Executor in the Ecclesiastical Court for a Legacy who pleaded Recovery in debt against him at Common Law and beyond that he had not Assets wherewith to satisfie To which the Plaintiff in the Ecclesiastical Court Replyed That the Recovery was by Covin and that the Plaintiff in the Recovery offered to discharge the Judgement and the Defendant would not And hereupon the Question was whether a Prohibition should be awarded or not And it was Resolved That it should not be awarded for that the Covin or Fraud is properly examinable in the Ecclesiastical Court because the Legatee cannot sue for his Legacy at the Common Law Action upon the Case of Trover of Goods The Case was this a Recovery in the Exchequer was had against the Executor of P. of Debt and Dammages and Fieri Facias issued de bonis Testatoris si c. And if none then Damna de propriis the Executor dies the Sheriff levies Execution of the Testators Goods before the Return of the Writ and adjudged good notwithstanding his death after the Test of the Writ B. brings Debt against H. on a Demise for years to one unto whom H. was Administrator And the Writ was in the Debet and Detinet Whereupon in Arrest of Judgement it was shew'd in B. R. That it ought to have been in the Detinet only because against an Administrator But it was adjudged That it was good in the Debet and Detinet because the Rent due incurr'd in the Administrators time and the Land is not Assets but only so much of the Profits as the Land is worth above the Rents and the Administrator shall not answer for more than the Land is worth deducting the Rent But in all Cases where an Executor or Administrator brings an Action for a Duty Testamentary there it ought to be in the Detinet only because the Duty being demanded ought to be Assets An Executor is not chargeable for a Debt due by the Testator upon a simple Contract Regularly an Executor shall not be charged without Specialty in any Action wherein the Testator might wage his Law for that an Executor cannot wage his Law of other mens Contracts 46 Ed. 3. 10. b. 11 H. 6. b. Information in the Exchequer in nature of an Account was brought against D. Executor of W. M. supposing that W. M. had received money of the Queens amounting to One
or legally representing their Stocks pro suo cuique jure according to the Lawes in such Cases and in manner and form following That is to say one third part of the said Surplusage to the Wife of the Intestate and all the residue by equal Portions to and amongst the Children of such persons dying Intestate and such persons as legally represent such Children in case any of the said Children be then dead other than such Child or Children not being Heir at Law who shall have any Estate by the settlement of the Intestate or shall be advanced by the Intestate in his life-time by Portion or Portions equal to the share which shall by such distribution be allotted to the other Children to whom such distribution is to be made c. And the Heir at Law notwithstanding any Land that he shall have by descent or otherwise from the Intestate is to have an equal part in the distribution with the rest of the Children c. And in case there be no Children nor any Legal Representatives of them then one Moity of the said Estate to be allotted to the Wife of the Intestate the residue of the said Estate to be distributed equally to every of the next of Kindred of the Intestate who are in equal degree and those who legally represent them Provided that there be no Representations admitted among Collaterals after Brothers and Sisters Children And in case there be no Wife then all the said Estate to be distributed equally to and amongst the Children c. And no such distribution to be made till after one year after the Intestates death nor without sufficient security to be given by those to whom such distribution shall be made for refunding back to the Administrator according to each ones ratable proportion in case of the Intestates Debts afterwards sued for and recovered or otherwise duly made to appear For other Provisoes Rules and Limitations in the said late Act of Parliament the Reader is referred to the Statute it self there more at large Note An Administration cannot be revoked for the not bringing in of the Inventory and the Account of the Administrator And the Ordinary upon an Administration granted had not before the said Statute power to make any distribution of the Surplusage nor to take any Bond for to Answer the Surplusage by the true meaning of the Statute of 21 H. 8. which intends a benefit to the Administrator and not an unprofitable burden The Ordinary hath not power to make distribution of the Goods because there may be a Debt which was unknown and if he might distribute then the Administrator should be charged with the debt of his own Goods Vid. Briersley's Case Brown 1 Part. 31. acc Whether this were Law then is a needless question it being otherwise now by the Statute aforesaid CHAP. XXXIII Of Right to Administration 1. What the Method of Succession is by the Laws of this Realm 2. How the Civil Law understands it 3. The difference between the words Kindred and Consanguinity between Cognatos and Agnatos 4. Whether an Alien no Denizon may be an Administrator 5. Administration granted a Caveat depending is void in Law 1. BY the Law both by the Statute Lawes the Common Law and by the Civil Law the nearest of Kin to the deceased Intestate is to succeed in the Administration of his Goods As first to the Husband or Wife but if they fail then secondly to the Children whether Male or Female but if they fail then thirdly to the Parents whether Father or Mother but if they fail then fourthly to the Brothers or Sisters of the whole blood but if they fail then fifthly to the Brothers or Sisters of the half blood but if they fail then sixthly to the next of Kin as Uncles Aunts c. From these the Ordinary cannot grant the Administration to a Stranger if they seasonably require it and are not otherwise affected by some legal impediment but he may grant it to which of these he please if divers of them in equal degree do desire it yea to a Stranger if they neglect it 2. The Civil Law as to the Intestates Estate whether Real or Personal considers it all under the same Notion yea in this case it makes no distinction either of Ages or Sexes but all that are concern'd may challenge an equal proportion provided they be of equal degree and of identity in blood whether of the whole or of the half blood But the Wife was otherwise provided for by the Civil Law Therefore exempted from a Succession to the Goods of her Intestate Husband There are but Three Orders or Degrees chiefly of Kindred which the Civil Law doth specially take notice of The first is in the Right Line Descendent as Children Grand-Children and so downwards The Second is in the Right Line Ascendent as Parents Grand-Parents and so upwards The Third is in the Line Transversal or Collateral as Uncles Aunts Great-Uncles and so side-wards alwayes remembring that the whole blood is more worthy than the half blood and the nigher Degree more worthy than that which is more remote 3. Consanguineus or Consanguinity and Agnatus properly so called and strictly so taken doth comprehend only them that be of Kin by the Fathers Side Therefore the word Kin or Kindred is of a greater Latitude than Consanguinity because it comprizeth Cognatos as well as Agnatos and so comprehends all the Relations of both Lines both Male and Female for Cognati properly understood signifie only such as are the Mother-Side and of the Female Line And here Note that the most remote Agnati or Kindred of the Line Male in a Right Line Descendent are preferred before the nighest Kindred of the Female Line but it is otherwise in a Transversal or Collateral Line But as to Land in Fee or of Inheritance the Right thereof quasi ponderosum ever descends Downwards in a Right or Transversal Line and never doth Re-ascend the same way that it Descended by the Ancestors death yet it may Ascend à Latere or Sideward for want of Right Heirs in the Descendent Line which often happens 4. Suppose an Alien born and not made Denizon happen to dye Intestate within this Realm having Kindred born beyond Sea and others though more Remote born in this Realm In this Case an Alien may be Administrator and have Administration of Leases as well as of Personal Things because he hath them as an Executor in anothers Right and not to his own Use And he may be an Administrator as well as a person Out-Lawed or Attainted may be an Executor and no Prohibition will lye in this Case 5. An Administratrix Sued the Defendant in the Court of Chancery the Defendant shewed That before Administration was committed to the Plaintiff he had put in a Caveat in the Ecclesiastical Court hanging which Caveat the Plaintiff obtained Letters of Administration of which he demanded Judgement pendant the