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
his Suit is in anothers right viz. the Testators But he that is Excommunicate cannot proceed in Sute as Executor yet this Excommunication pleaded doth not abate or overthrow the Sute but makes that the Defendant may stay from answering his Sute until the Plaintiff be absolved and discharged from his Excommunication 5. Although one Co-Executor cannot Sue another for possession of the Testators Goods for that many Executors to the same Testator are but as one man and no man can Sue himself So that when the Testator doth make divers Executors if any one of them doth get the Goods or the possession of the Goods of the Testator the other Executor hath no Action for recovery of the same Goods or any part thereof for the said Reason that one Co-Executor cannot Sue another nevertheless if the Testator make divers Executors and do bequeath to the one of them the residue of his Goods it is not only lawful for him to whom they are so bequeathed to retain the same but also if the other Executor enter thereunto he is subject to an Action of Trespass Also if the Executor of a Co-Executor have any Goods belonging to the first Testator the other surviving Co-Executor of the first Testator may have an Action against the Executor of that deceased Co-Executor for the same Also if there be Two Administrations granted together he that is the rightful Executor or Administrator may Sue the wrongful Administrator for the Goods in his custody 6. Executors may not Sue for the Goods of their Testators in the Court Ecclesiastical but at the Common Law Yet in some Cases an Executor may Sue in the Ecclesiastical Court as touching his Testators Goods as when a man bequeathes Corn growing or Goods unto one and a stranger will not suffer the Executor to perform the Testament for this Legacy he may Sue the Stranger in the Ecclesiastical Court But if a man take from an Executor Goods bequeathed for this the Executor must Sue his Action of Trespass and not Sue in the Ecclesiastical Court Also Tenants may be Sued but at the Common Law by Executors or Administrators for Rents behind and due to the Testator in his life-time or at the time of his death and may for the same distrain the Land charged with the Rent 7. A Woman and another person were made Executors the Woman took Husband who did not alter the property of the Goods of the Testator and then the Wife died it was adjudged That the other Executor might have an Action of Detinue against the Husband for the same Goods Debt brought by an Executor as due to his Testator and Judgment given for him but before Execution the Plaintiff died Intestate and the Ordinary committed Administration of the Goods of the first Testator to another who Sued out a Scire Facias on the Judgement All the Justices agreed That the Scire Facias did not lye For that when the Executor died Intestate the Testator was dead Intestate also whereby the Judgement and Recovery was void Detinue brought by an Executrix against her own Husbands Executor the Case was this One Falconer who was the Plaintiffs first Husband made his Will gave divers Legacies and towards the end of his said Will said The Residue of all my Goods I Give and Bequeath to Frances my Wife whom I make my full and whole Executrix of this my Last Will and Testament to dispose for the wealth of my Soul and to pay my Debts and died indebted to divers persons to whom the said Frances paid the said Debts and all the Legacies having then Goods in her hand for which this Action was now brought she having after married one John Hunks who made the Defendant his Executor to whose hands the said Goods came Whereupon the Court demurred and Judgement was that the Plaintiff should recover for notwithstanding the Devise viz. of the Residue as aforesaid she hath them not as a Devisee but as Executrix because the words of the Devise can have no other intendment than that she should enjoy them as Executrix Debt brought by the Executrix of J. T. against W. B. The Case was this The said W. B. caused a Writing to be made and sealed which he delivered to V. C. to deliver to J. T. as his Act and Deed Accordingly the said V. C. offered the same to the said J. T. as the Act and Deed of the said W. B. But he utterly refused to receive the same as such notwithstanding which the said V. C. there left the said writing which matter the Defendant pleaded and said it was none of his Act whereupon was a demur and Judgement given for the Plaintiff Debt upon an Obligation Conditioned That if the Defendant in Michael Term then next ensuing in the Prerogative Court of the Arch-Bishop of Canterbury at London should give to D. his Executors or Administrators such a Release and Discharge from and against him and his Children for the receipt of One Hundred Marks as by the Judge of the Court should be thought meet That then c. The Defendant pleaded that the same Term one S. was Judge there and that the said Judge did not Devise or Appoint any Release or Discharge c. And it was thereupon demurred and adjudged to be no Plea For that it is not alleadged that he caused a Release to be drawn and tendered to the Judge to be allowed for it is on his part in discharge of his Obligation to draw such a Release as the Judge should allow Wherefore it was adjudged for the Plaintiff 5. Co. 23. b. Mich. 43 44. C. B. Pl. 42. Debt as Administrator to B. upon an Obligation The Defendant pleaded That the Plaintiff was an Alien under the Obedience of Philip King of Spain Enemies to our Soveraign the Queen and demands Judgement whether he should be Answered and it was demurred thereupon and adjudged that he should Answer Assumpsit By an Executor of a Promise made to his Testator The Defendant pleads non Assumpsit and found for the Plaintiff and Judgement for him And Errour was thereof brought and Assigned because he did not shew in Court the Testament in the Declaration mentioned Whereunto it was said That it was but default of Form which is aided after Verdict but all the Court held it to be matter of substance for otherwise he doth not entitle himself to the Action without shewing the Testament For which cause it was Reversed Debt upon a Special Verdict the Case was A Parson made a Lease for years rendring Rent at Michaelmas or within a moneth next after The Lessee Enters the Lessor dies within ten dayes after Michaelmas Whether his Executor hath any remedy for this Rent was the Question and Ruled that he had not for the Rent was not due in the Testators time nor until the end of the moneth And in such Case it hath been adjudged that such
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
from the deceased 4. If an Executor Sued do plead that he never was Executor nor Administred as Executor for that must be added then if Issue be taken upon this Plea and it be found against him the Plaintiff shall have Judgement to Recover not Dammages only but the Debt it self out of the proper Goods of the Executor if none of the Testators can be found Likewise as it is frequent in use for Executors to pay the Testators Debt with their own monies and to make themselves satisfaction out of the Testators Goods So it is most equal that Executors should with their own money discharge the Arrerages of Rent of those Leases the Profits whereof themselves enjoy by vertue of the Testators Will Therefore where an Executor is sued for Rent behind after the Testators death upon a Lease for years made to the Testator and by him left to the Executor here it shall be adjudged and levied upon the Executors own Goods for that so much of the profits as the Rent amounted unto shall be accounted as his own Goods and not his Testators Again if Executors plead Plene Administra and it be found for them and after that certain Goods of the Testator come to their hands in this Case if he which brought the first Action of Debt bring the same against them again the Action is well maintainable It is also to be remembred That the value upon an Appreyzment in an Inventory is not binding nor much to be regarded at the Common Law either for or against Executors for if it be too high it shall not prejudice the Executor if it be too low it shall not advantage him but the very true value as shall be found by the Jury when it comes in question whether the Executor hath fully Administred or hath Assets in his hands or not is that which is binding in the Law 5. Executors are lyable to satisfie the Obligations made by their Testators though they be not therein bound by Name Also an Action of the Case lyeth against an Executor upon an Assumpsit or the simple contract of the Testator especially where the ground of the Assumpsit is a true and real debt Also the Rationabilis pars bonorum by Custome in some places is maintainable for the Widow and Children against the Executors Also a Detinue lyeth against him for the Goods delivered to the deceased if the Executor doth still continue the possession of them Likewise an Action lyeth against the Executor for arrerages of account found upon the deceased before Auditors Also the Executor of a man that recovereth a Debt upon a Judgement had by the deceased shall be chargeable with restitution if the Judgement be reversed for Errour Also where a Prisoner dyeth in debt to a Goaler for his diet during the time of his imprisonment his Executor is lyable Likewise where one hath a Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Kings and delivereth it to him he then having money of the Kings in his hands if he dye without paying the same his Executor shall stand chargeable with the payment thereof Also the Executors of an Administrator are chargeable where he did neither pay the Debts nor leave the Goods of the Intestate to the next Administrator but otherwise disposed of them Yet an Executor is not chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge 6. But an Executor as hath been formerly implyed is not chargeable for any personal wrong done by the deceased for it dies with his person neither will an Action of Debt lye against him upon the simple Contract of the deceased but an Action of the Case only Neither will an Action lye against an Executor upon an Arbitrement made in the life-time of the deceased albeit it be made in writing Neither will an Action lye against an Executor for Costs given in Chancery against the deceased in a Sute there for it is lost when the party dies And where there be many Executors and all have accepted they must all be joyned in the Sute but if some of them have refused possibly the Sute may be good enough against the rest Otherwise one Executor cannot be charged without his Co-Executors except it be in the Case of Severance and in some special Case where one alone doth the wrong as where one Executor doth detain the Deeds from the Heir 7. Debt brought against the Executor of H. W. The Defendant pleaded That he never was Executor nor Administred as Executor The Jury found That the said H. W. died possessed of divers Goods and that one W. A. was indebted Seven Pound to him which theâ— Defendant had received and for which he had given his Acquittance and that immediately after the death of the said H. W. the Defendant took into his possession all his Goods converted them to his own use enjoy'd them and disposed of them to his own profit at his own will and pleasure And whether upon this matter of Fact the Defendant were Executor or not was submitted to the Court who were of Opinion That this matter of Fact was the Administration as of an Executor and that the Defendant should be charged accordingly Scire Facias upon a Judgement against a Testator in Debt brought against his Executors who pleaded That before they had knowledge of this Judgement they had fully Administred all the Testators Goods in payment of Debts upon Obligations It was adjudged no Plea for at their peril they ought to take knowledge of Debts upon Record and ought first of all unless Debts due to the Queen to have satisfied them It was adjudged accordingly Debt was brought by S. B. against D. B. and others Defendants Executors c. The Defendants pleaded Recovery against them by another in an Action of Debt and shewed the Contents of the Record to which it was Replyed That the Recovery was by Covin to defraud the Plaintiff of his Debt and hereupon Issue was joyned it was found by Verdict for the Plaintiff and agreed by all the Justices That the Judgement should be against the Executor as against the Testators Goods and not as against his own proper Goods being hereunto upon good Advice inclined for several Reasons 1. For that the Plea was a void Plea for the Record which the Defendant pleaded was such as the Plaintiff doth confess and avoid and not like that which is every way false as when one pleads that he never was Executor nor Administred as Executor c. which Plea being every way false and so within his own knowledge also doth for that Reason cause that Judgement in that Case shall be of his own proper Goods 2. Another Reason is That because such Judgement is most agreeable to Reason viz. To give the Plaintiff Recovery of his
That in the Principal Case the substance of it was the Possession and not the Administration It was adjudged for the Plaintiff Pasch 27 Eliz. in C. B. Carter and Crofts case Godbolt 33. Vid. Dyer 304. An Administrator brought an Action of Debt for Rent which was found for the Plaintiff and Judgement given Exception was taken that the Plaintiff had not shewed by whom the Letters of Administration were granted to him But the Opinion of the Court was That it was too late to shew that after Verdict for that the Jury have found that the Administration was duly granted And it was said in the Court That in a Declaration it is not necessary to shew by whom the Letters of Administration are granted or to say that they were granted by him cui pertinuit or per loci illius Ordinarium Yet Note that it was said in another case That if an Administrator bring an Action against an Administrator it is not necessary for the Plaintiff to shew by whom the Letters were granted to the Defendant but he must shew by whom the Letters of Administration were granted to himself to entitle him to the Action for if it appear not to the Court that he is Administrator he cannot Sue If an Infant be made Executor Administration during the Minority of the Infant may be committed to the Mother and the same shall cease and be void when the Infant is of the Age of Fourteen years But such Administrator cannot sell the Goods of the Testator unless it be for necessity of payment of debts because he hath the Office of Administrator only pro bono commodo of the Infant and not to its prejudice Note it was resolved per Curiam That an Administration durante minori aetate of an Executrix was not within the Statute of 21 H. 8. of necessity to be granted to the Widow of the Testator because there is an Executor all the while otherwise if the Executor were made from a time to come An Infant was made Executor and Administration was granted to another durante minori aetate of the Infant who brought Action of Debt for money due to the deceased and had the Defendant in Execution and then the Executor came of full Age. It was moved that the Defendant might be discharged out of Execution because the Authority of the Administrator was determined and he cannot acknowledge satisfaction And it was said That he was rather a Bailiff to the Infant than an Administrator But the Judgement of the Court was That though the Authority of the Administrator was determined yet the Recovery and Judgement did remain In an Account brought by an Administrator durante minori aetate against the Defendant as Bailiff of such a Mannor it was found for the Plaintiff It was moved in stay of Judgement That it is not shewed that the Executor the Infant was within the Age of Seventeen years and it might be he was above the Age of Seventeen years and yet under Age But the Opinion of the Court was That it shall not be so intended unless it be shewed that he was above Seventeen years and especially when the Defendant had admitted him to bring the Action and had pleaded to Issue Between P. and S. the Case was An Infant was made Executor to whom certain Leases among other things were devised and Administration during his Minority committed to one who sold and alienated the Leases It was agreed by the Justices That the Administrator could not sell the Leases unless there were good and reasonable cause moving thereunto as in case there were no other Goods save the Leases wherewith to pay the Testators debts which ought of necessity to be paid the Leases may to that end and purpose be sold otherwise not but Beasts and other things which cannot long be kept or preserved especially fat Beasts Corn or the like may be sold And of this Opinion was the Chief Justice of the Kings Bench and the Chief Baron Debt as Administrator of B. upon an Obligation the Case was That the Intestate died in Lancashire but the Obligation was at London at the time of his death and the Bishop of Chester in whose Diocess he died committed Administration to J. S. who released to the Defendant and the Arch-Bishop of Canterbury committed the Administration to the Plaintiff and this Release was pleaded in Bar and it was thereupon demurr'd Warberton Every Debt follows the person of the Debtee and Chester is within the Province of York where the Arch-Bishop of Canterbury hath nothing to do Anderson Where one dies who hath Goods in divers Diocesses in both Provinces there Canterbury shall have the Prerogative otherwise there would be Two Administrations committed which is Res inaudita The Debt is where the Bond is being upon a Specialty but debt upon a Contract follows the person of the debtor and this difference hath been oftentimes agreed vid. Dyer 305. And if the Arch-Bishop of Canterbury hath not any Prerogative in York but that several Administrations ought to be committed yet at leastwise Administration for this Bond ought to be committed to the Arch-Bishop of Canterbury wherefore the Release is not any Bar. Debt against the Defendant as Administrator of F. he pleads a Recovery against him as Executor and besides to satisfie that he hath not any Assets And it was thereupon demurred and adjudged to be a good Plea and he shall not be twice charged wherefore it was adjudged for the Defendant Debt against the Defendant as Administratrix of T. H. her Husband upon a Lease to the said T. by Indenture for years and how the Defendant is Administratrix to him And for Rent arrear after his death the Action was brought in the Debet and Detinet upon Not Guilty pleaded it was found for the Plaintiff and now moved in Arrest of Judgement That the Declaration was not good for that c. And at another day it was moved That this Declaration ought to have been in the Detinet and not in the Debet and Detinet because she hath the Term as Administratrix and is not charged by her own Contract but by an Act of the Testator and to that purpose was cited 19 H. 8. 8. 10 H. 5. 7. And a President was shewn in C. B. between Barker and Kelsay where the Action was brought in the Detinet only And Godfrey affirmed that in Fenns Case in this Court it was Ruled That the Action ought to be brought in the Detinet Gaudy The Action is well brought in the Debet For this Rent though Arrear after the death of the Intestate begun first in the Administratrix and therefore the Action well lies against her in the Debet For the reason why the Action against an Executor shall be in the Detinet is for that the debt grew due by the Testator and therefore it cannot be said that Executor Debet But in an Action against the Heir it shall
an Account against B. as Receiver of the monies of the said J. S. upon Ne unque Receiver pleaded It was found for the Plaintiff and Judgment given that he should Account and being in Custody upon a Capias ad Computandum he was found in Arrearages and his body taken in Execution Afterwards the Will was made void in the Ecclesiastical Court for that the said J. S. was an Ideot from his birth which being certified by Writ into the Chancery and thence by Mittimus into B. R. an Audita Querela was brought by B. setting forth all the said matter whereupon the Court demurr'd It was said by Cook That in 35 H. 8. It had been Adjudged That in that Case the Audita Querela did well Lie The Marquess of Winchester by his Will in writing as supposed Devised divers Mannors to his Reputed Sons Devising further that they should sell divers Mannors and also bequeathed Plate and other Legacies to them This Will was assayed to be Proved in the Prerogative Court but it appearing by circumstances the said Marquess to be Non compos mentis at the time when the supposed Will was made it was moved for a Prohibition in B. R. because a Will touching Lands and a Will concerning Goods were both mixt together and that in Case they should there proceed as to the Goods the same would prevent the Tryal in the Kings Bench where a Will for Land shall be Tryed for which Reason a Prohibition in that Case was generally awarded 2. In that Case it was resolved That a Testator at the making of his Will ought to be of a memory not only to answer to ordinary and familiar questions but also to have a disposing memory so as to be able to make a disposition of his Lands with Reason and Understanding and that That is such a memory which the Law calls Sanae Memoriae CHAP. IX Of Persons Intestable for want of Freedom or Liberty 1. Of Villaines 2. Of Captives 3. Of Prisoners 1. VIllaines are Intestable if their Lord by Entry and Seizing take and enjoy all their Lands and Goods otherwise their Wills are not void but by such Entry and Seizing before Probate they become voidable Except of such Goods whereof such Villains were Executors to others for of such Goods they may not only make their Wills but also maintain actions even against their Lords in case they should take from them such goods as they have by Executorship But of this there is little or no use with us now here in England as in former times 2. A Captive during the time of his Captivity cannot make a Testament yea though he afterwards make an escape yet the Testament made during the Captivity is void but if it were made before his Captivity then after his escape or enlargement it shall be as good in Law as if he had not been Captive at all Likewise he that is alive and in Captivity for the upholding of his Will which he made in his Liberty is feigned by a Legal fiction to be dead the hour before he became Captive so that if he dye in Captivity yet is his Testament so made before his Captivity allowed and his Executor shall have all his Goods as if he had died the day before his Captivity Likewise if any person be taken by a Pirate Turk Infidel or Christian with whom open War is not proclaimed he so taken remaineth a Freeman in construction of Law as to Testability notwithstanding such Capture and therefore his Testament made during such restraint shall be good 3. Persons condemn'd to perpetual Imprisonment cannot make a Testament But a person imprisoned only for debt or the like is not thereby disabled to make his Testament or is his Testament void except it be made in the favour of him at whose Suit the Testator is imprisoned on purpose to extort the same from him CHAP. X. Of Women Covert 1. Women Covert Intestable as to Lands 2. They are Intestable as to Goods without the Husbands License 3. They are Testable as to Chattels by Executrixship 4. They are Testable as to things meerly in action whereof they were not possessed during Coverture 5. Whether they may accept Executrixship without their Husbands consent or the Husband Administer in case of their refusal thereof 6. Cases in the Law concerning this Subject 1. THat Women Covert are Intestable for want of Freedome is not such a general Rule in Law as to exclude all exceptions It is true a married woman cannot make her Testament of any Lands Tenements or Hereditaments specially she cannot devise the same to her Husband though she were not thereto constrain'd by him but would do it of her own accord freely and voluntarily and though such Testament were made before her Marriage with such Legatary-husband And albeit the Wife survive the Husband yet the Testament made during Coverture is not good But yet if after her Husbands death she approve and confirm such Testament made under Coverture then this new Consent or new Declaration of her Will makes the Devise good Also if the Testament were made before Marriage and she out-live her Husband it shall be good Also where power of selling the Testators Land is given to a Wife-Executrix there she may sell even to her own Husband or to whom she please 2. Of Goods and Chattels the Wife cannot make her Testament without her Husbands License for all the Goods and Chattels which the Wife had at the time of marriage and all the Chattels real if he survive the Wife belong unto the Husband by vertue of the said marriage Yet by the Husbands License she may make her Testament even of his Goods yea though the Husband understand not of his Wifes Will yet if after Probate thereof made by the Executors he deliver them the Goods therein Devised he thereby ratifies the Testament though he were not privy to the making thereof for the Goods being once delivered by him according to the tenour of the Will it is then too late for him to revoke the same Otherwise notwithstanding his License given her to make a Will of his Goods he may revoke the same at any time before the Probate thereof Or otherwise having made her Will by her Husbands License he may chuse whether he will suffer it to be Proved for his Consent is necessary as well to the Approbation as to the first making thereof And this extends also to the Goods which she had in her own right before marriage for thereby immediately all Chattels personal and Goods moveable are so devested out of her into her Husband that although she survive him yet they return not to her again but go to her Husbands Executor or Administrator 3. Touching Goods which she hath as Executrix to another the Case is otherwise for such do whether she or her Husband
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
Debt out of the Testators and not the Executors Goods which is conceived a more reasonable way than to charge the Executors for that they bear the burthen of the Administration of the deceaseds Will they deserve to have as much favour as Reason will admit and not be charged of their own proper Goods It was further said That if an Executor should be lyable to such Judgement of his own Goods it would be a cause of often refusing the Administration of Testaments for it is a thing of ill consequence to bind Executors in their own proper Goods in any other Cases than have been in fore-time adjudged which Cases were cited out of divers Books but here omitted for brevities sake none of which Cases have any resemblance with this in question Debt was brought against an Executor the Plaintiff Declared upon a simple Contract To which the Defendant pleaded Fully Administred It was found against him and moved in Arrest of Judgement for that the Action was against an Executor who is not chargeable in that manner and it was said That when it doth appear to the Court that the Executor is not chargeable the Court ought not then to Judge for the Plaintiff and to this purpose some Books were cited and it was said That the Reason why an Executor shall not be charged upon a simple Contract is for that he is a Stranger and cannot have notice of the Contract and therefore the Law will not have him to be charged for that alone without somewhat else But in this Case it appears that he had notice of the Contract inasmuch as thereupon he pleaded fully Administred and that Plea being admitted it implyes as if he had known of the Contract and therefore when he pleaded that he had fully Administred which was found against him Judgement ought to have been given for the Plaintiff for proof whereof a Judgment was cited which appears to have been given An. 10 H. 6. fol. 15. and 13 H. 6. As the Book sayes in the like Case against an Executor upon a simple Contract All which notwithstanding it was resolved by the Court That the Plaintiff should take nothing by his Writ giving their Reasons for such their Judgement which for brevities sake are also here omitted Debt against an Administrator upon an Arbitrement made betwixt the Plaintiff and the Intestate in Writing and the Defendant demurr'd thereupon and without argument it was adjudged for the Defendant because the Intestate might have waged his Law But otherwise it were if it had been in debt upon Arrerages of Accounts before Auditors Assumpsit against an Executor upon the Promise of the Testator and in the Declaration it was not averred That he had Assets to pay debts c. But Mich. 29 30 Eliz. It was adjudged that the Declaration was good and the Plaintiff recovered Debt against an Executor upon an Obligation made by his Testator the Plaintiff was Non-suited the Defendant had Costs by order of the Court. Otherwise it is where an Executor is Plaintiff and is Non-suited For it cannot be intended that it was conceived upon malice by him Vid. Stat. 23 H. 8. cap. 15. Debt against an Executor upon an Arbitrement made in the time of the Testator It was demurred in Law whether it lay or not Because the Testator might have waged his Law And adjudged without Argument that it lay not Debt against P. as Executor The Plaintiff had Judgement to recover de Bonis Testatoris And thereupon a Scire Facias was awarded and the Sheriff returned Quod nulla habuit bona Testatoris And the Plaintiff surmiseth that he had wasted the Testators Goods whereupon he prayeth a Scire Facias why he should not have Execution de bonis propriis And ruled by the Court That this Writ shall not be awarded upon the surmise of the party upon a devastation nor in any Case where the Judgement is de bonis propriis unless it be upon return of the Sheriff where he returns a Devastavit Vid. 9 H. 6. 9. 57. Fitzh Execution 9. Scire Facias against an Administratrix to have Execution of a Judgement against the Intestate the Defendant pleaded Quod nulla habet bona quae fuerunt Intestati tempore mortis suae in manibus suis Administranda nec habuit die impetrationis brevis nec unquam postea And it was thereupon demurred and held by all the Court that it was not any Plea for a Judgement cannot be answered without another Judgement and it may be she had Administred all the Goods in paying debts upon Specialties which is not any Administration to bar the Plaintiff Or as some said it may be she had paid Debts upon a Statute or Recognizance which is not allowable against a Judgement But Anderson denied it for there is not any Priority of Debts upon Record unless in Case of the Queens Debt which is first to be paid And here the Defendant ought to have pleaded specially how she had Administred Wherefore it was adjudged for the Plaintiff The Defendant pleaded Out-lawry in the Testator 29 Eliz. not reversed and it was thereupon demurred Herne for the Plaintiff moved That it was not any Plea because admitting it to be a Plea it should be in regard of the Testators being Out-lawed he could not have any Goods but what appertained to the Queen and then the Executors might not have any Goods to satisfie But that is not so for the Testator might have a debt due to him upon a Contract which is not forfeited or it might be the Testator Devised Lands to be sold and which are sold the money is Assets in their hands and in 3 H. 6. 17 32. it was holden to be no Plea And of that Opinion were Walmesley and Owen For a person Out-lawed may well make a Will and have Executors over and besides the Goods forfeited to the Queen as in the Cases before put and others of the same nature But Beamond è contra for the Bar is good to a common intent and these kind of Assets shall not be intended unless they be shewn Wherefore primâ facie the Plea is good Anderson absente Adjournatur Afterwards for defect of pleading without regard to the matter in Law it was adjudged for the Plaintiff 8 Ed. 4. 6. 21 Ed. 4. 5. 39 H. 6. 27. Errour of a Judgement in C. B. against Three Executors The Errour Assigned was That one of them died pending the Writ before Judgement And Warberton moved that this was Errour but when one of the Executors Plaintiffs die this is no Errour for they might be served But the Court held it no Errour 3 H. 7. 1 3. 8 Ed. 3. 11. Scire Facias against Executors upon a Judgement against their Testator in debt They pleaded that before they had any knowledge of this Judgement they had fully Administred all the Testators Goods in paying of debts upon Obligations and it was thereupon demurred and
29. 13 H. 4. Executors 118. Coke contra for when by his tortious Administration he hath given advantage to be sued as Executor he cannot by his own act purge this tort and cause the Plaintiff to sue him by another name but the Plaintiff hath election to sue him one way or other for he shall take no advantage by his own Tort as if one in Execution escapes and is taken away by the Gaoler he shall not have an Audita Quaerela and it will be a mischief if the Plaintiff shall be compelled to sue him as Administrator for it may be that whilst he Administred of his own wrong he wasted the goods and if he be only sued as Administrator he shall only be charged of the goods which came to his hands since Administration 12 R. 2. Administrators 21. And it was afterwards adjudged that the Writ was good and that the Defendant respondra ouster Nota if Judgement be given against an Executor upon Demurrer and Execution be awarded the Sheriff cannot return nulla habet bona Testatoris but is to return a Devastavit as if it had been found against the Executor by Verdict for per Curiam he hath charged himself by his own Plea Debt per c. vers c. as Executor he pleaded Nunques Executor c. and on special verdict found that Administration of the goods of the Testator was committed to the Wife of the Defendant who is dead and that he kept bonam partem bonorum in his hands and sold them Williams moved this Verdict was void for the uncertainty for bonam partem is altogether uncertain but it was held to be well enough for if he detain any part it makes him Executor de son tort and wherefore it was adjudged for the Plaintiff Debt against R. as Executor of T. the Defendant pleads that T. died Intestate and that certain of his goods came to the Defendants hands and afterwards Administration was committed to J. S. to whom he had delivered the said goods Et per Curiam it is not any Plea for if Administration had been committed to himself it would not have purged the first tort So here although Administration is committed to a stranger in regard that he hath once made himself chargeable to the Plaintiffs Action as being Executor de son tort c. he shall never after discharge himself by matter ex post facto Wherefore c. Adjournatur vid. 21 H. 6. 8. 9 Ed. 4. 47. 2 R. 3. 20. The Executor of A. brought Action of Debt against B. as Executor of D. upon a Bond the Defendant pleaded that D. died Intestate and that before the Writ brought Administration of his goods was committed to N. who Administred and yet doth the Plaintiff replyed That D. died Intestate and before the Administration granted divers goods of his came to the Defendants hands which the Defendant as Executor of the said D. Administred seu aliter ad suum proprium usum disposuit whereupon Issue being joyned it was found for the Plaintiff for since there was an Executor before the Administration afterwards granted the Plaintiff had cause of Action vested in him which shall not be taken away by such Administration afterwards granted though it be before the Action brought and so much the rather because the goods taken by wrong before the Administration shall not be Assets in the hands of the Administrator till they be recovered or damages for them A Woman Executrix taketh a Husband afterwards they are Divorced upon a Pre-contract the Wife Appeals to the Delegates and pendant the Appeal the Husband Administreth the goods and then dieth It was a Question whether the Husband should be said to be an Executor in his own wrong vid. 2 Jac. Co. 5. par Reads Case 33. That when a man dieth Intestate and a stranger taketh his goods and useth them or sells them he is an Executor of his own wrong for they to whom the deceased was Indebted have not any other against whom they can bring their Actions for recovery of their Debts And so note that the very seisure of goods will make one an Administrator of his own wrong Debt against G. as Executor to H. the Defendant pleads that H. the Testator was bound in a Stat. of One Hundred Pound and besides that he had not Assets and hereupon they were at Issue and a special Verdict found That the Defendant was Executor de son tort demesne and that the Testator was indebted unto him and that he retain'd divers goods to satisfie that debt due unto himself and over and above then to satisfie the Recognizance he had not in his hands c. si c. It was argued by Tanfield and Goldsmith for the Plaintiff and by Coke for the Defendant The sole point was whether an Executor de son tort may retain goods to satisfie himself And Coke moved that he well might and the Plaintiff by this Action against him hath allowed him to be rightful Executor wherefore the finding that he was Executor per tort is not material and he being allowed to be Executor may do all things as an Executor viz. pay Debts or any other Lawful Acts and as he may do it to a stranger so he may pay himself Gawdy and Fenner were of his Opinion For as he shall be charged by reason of his possession Like reason it is he should be allowed all Lawful Acts and this is here a Lawful Act as where c. Popham and Clinch è contra For an Executor de son tort shall never have any benefit by his Malefesance and c. A Precedent was cited Pasch 32. Eliz. in C. B. That an Executor de son tort might not retain to satisfie himself wherefore c. Afterwards upon another day it was moved again and the Court said They were resolved That an Executor de son tort de mesme cannot retain goods to satisfie himself his own debt And Popham said That divers of the Justices in Serjeants Inn to whom he had propounded the Case were of that Opinion and that they were resolved to enter Judgement for the Plaintiff But it was then surmised to the Court that the Defendant was dead and thereupon a stay of Judgement was prayed but the Court would not stay it upon such surmise but upon the Plaintiffs prayer Judgement was entered 5. Co. 20. Ejectione firmae for Whites Closes upon Not Guilty it appear'd upon the Evidence That a Lease for years was granted to one Okeham who died Intestate and Anne his Wife assigned it per paroll to one Burgess and after she got Letters of Administration and made an Assignment thereof to one Kenrick And the Court directed the Jury for Kenrick the last Vendee yet they agreed That if one Enter as Executor of his own wrong and sell Goods and after obtain Letters of Administration the Sale is good but in this Case there is a Term
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
Fenner held that they should not be Assets for although being but fraudulent it shall be said to be a void Gift against the Donor and Creditor and so lyable to his debt yet it is good betwixt the Donor and Donee and shall not be Assets in the hands of any but the Donor or Donee but here the Husband is a meer Stranger thereto wherefore c. But all the other Justices è contra for that by the Common Law the Gift being fraudulent they are lyable to the Plaintiffs Execution And Popham said If the Gift were good against all but Creditors as it is then they belong to the Donee and in his hands are lyable to this debt and if the Gift be void they remain to the Executors of the Feme and then the Baron having taken them and paid Legacies is chargeable by reason thereof as Executor de son tort demesne and so those Goods quacunque via data are lyable to this debt in whosesoever hands they come unless by Title Paramount or by Sale bonâ fide wherefore it was adjudged for the Plaintiff Scire facias against S. as Executor of F. V. upon a Judgement given against the Testator of Two hundred pound he pleaded payment of Forty pound debt due to the Queen and besides that he had riens in ses mains And thereupon they were at Issue whether he had Assets And it was found by special Verdict That the Testator was possess'd of divers Goods to the value of Two hundred fifty pound and by covin to defraud his Creditors made a Gift of his Goods to his Daughter with a condition of payment of twenty shillings that it should be void and died The Defendant intermedled with the Goods and afterwards the Daughter by this Gift took the Goods and after that Administration of the Goods of F. V. was committed to the Defendant and whether upon this matter he shall be charged as Executor and that those Goods should be Assets in his hands was the question And after Argument it was adjudged for the Plaintiff For first when he medled with the Intestates Goods although he were neither Executor nor Administrator and afterwards Administration was committed unto him a Creditor hath election to charge him as Executor or Administrator especially here when he pleads as Executor the finding by the Jury that he is Administrator is not to purpose 9 Ed. 4. 53. 2 R. 3. 20. 21 H. 6. 8. Secondly all the Court held That this Gift of the Goods is in it self fraudulent as appears by the Condition and the Covin is expresly found by the Jury and then it is utterly void against the Creditors by the Stat. of 13 Eliz. and the Intestate died possessed of them and when afterwards the Donee took them it was a Trespass against the Administrator for which he hath his remedy and they are alwayes Assets in his hands But if a Trespasser takes Goods from a Testator in his life-time so as they never were but a chose in Action to the Executor or Administrator they be not Assets until they be recovered Wherefore notwithstanding the taking of them by the Donee yet they alway remained as Assets in the hands of the Administrator and therefore he is chargeable for them as Executor de son tort by his intermedling with them before Administration committed and the Goods by Law remained alwayes in his possession Wherefore it was adjudged for the Plaintiff CHAP. XXV Additionals to the three last precedent Chapters touching how far and wherein Executors may be charged 1. Executors not chargeable upon a simple Contract of the Testators 2. Actions of Account lye not against the Executors of the Accountant 3. Personal Actions lye not against Executors as Executors 4. Executors lyable for no more than comes to their hands 5. The Husband not lyable for his Wifes debts after her decease 6. In what Case the Ordinary may be sued for the deceaseds debts 7. How an Executor may make himself chargeable de bonis propriis 8. The method of proceedings where Execution is de bonis propriis 9. Executors obliged though not mentioned in the Obligations 10. Contracts dissolved by Obligations after made 1. VVHerever the Testator might wage his Law there the Action lyeth not against the Executor therefore he is not chargeable upon an Action of Debt upon a simple Contract yea though such a debt grew for the most necessary things as Meat and Drink which bindeth even an Infant to payment yet will it not charge the Executor of a man of full Age so that though a common Host or Victualler trust his Guest he loseth his debt by his death Understand these things of Contracts only by word for where the Testator in his life-time did put his Seal to any Deed or Writing made upon any such thing this being then more than a simple Contract taketh from the Vendee his wager of Law and thereby chargeth his Executor But if the Testator Seal only unto a Tally or the like with Scotches expressing a debt this is no such specialty as shall charge his Executors And although no Action of debt lyeth against the Executor as aforesaid upon a simple Contract yet may the Creditor in that Case maintain an Action upon the Case grounded upon the Assumption implyed though not express'd And thus indeed the Executor is charged in substance or matter for a simple Contract though not in manner for a debt but as for breach of promise making recompence in dammages instead of the debt 2. No Action of Account lyeth against Executors except for the King that is against the Executors of the Accountant Nor indeed at the Common Law for the Executors of him to whom the Account is to be made but that is help'd by Statute For Executors could not have an Action of Account at the Common Law in respect of the privity of the Account but the Stat. W. 2. cap. 23. hath given an Action of Account to Executors the Stat. of 25 Ed. 3. cap. 5. to Executors of Executors and the Stat. of 31 Ed. 3. cap. 11. to Administrators And as an Executor is not chargeable in an Action of Account as aforesaid so neither is he chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge or custody 3. Although Executors are in Law understood as the Representees of their Testators persons yet if the Testator in his life-time commit any Trespass either upon the Person Lands or Goods of another no Action lyeth against his Executor for the same the reason is Actio personalis moritur cum persona as hath been formerly declared Hence it is that there is no remedy in Law to compel Executors though they have Assets to make satisfaction of a Trespass done by the Testator in his life-time for every Trespass dyeth with the person And therefore also it
is that no Action lyeth against the Executor of him who in his life-time carried away his Corn Hay c. without setting forth the Tenth and died before recovery had against him for the same although during his life the treble value were recoverable against him in an Action of debt and this holds true though the Testator were a Lessee for years so as his State came to his Executors The Law is the same and upon the foresaid Reason and Rule in Law if a Lessee for years commit wast and die no Action lyeth against his Executor for this wast Yet the Law is otherwise against Executors of Ecclesiastical persons in case of Dilapidations for if a Parson or Vicar do suffer the buildings of his Benefice to go to decay and dies his Executors are lyable by the Spiritual Law to the Successors Sute 4. An Executor shall not be charged with nor in respect of any other Goods than those which came to his hands after his taking upon him the charge of the Executorship or by vertue thereof And although the Executor of an Executor shall answer others to whom the first Testator was indebted as much as he shall recover of the Goods of the first Testator yet if that Executor did Alienate and Convert to his own use all the Goods which did belong to the former Testator in this Case no Action doth lye against the Executor of the Executor for Recovery of any debts due by the first Testator Likewise where A. makes B. Executor and B. makes C. Executor there the Goods which came from or were left by A. be not in the hands of C. lyable unto the Judgements had against B. Nor on the other side are the Goods of B. in the hands of C. subject to the Judgements had against A. And the like is to be understood of Statutes Recognizances and Bonds Also by the Laws of this Land an Executor shall not be charged by any bequest made by his Testator of the Goods that did belong to another man Indeed by the Civil Law it is otherwise for there it is lawful for the Testator to bequeath another mans Goods which the Heir at the Civil Law must buy or pay the value thereof if the Owner will not sell them 5. If a Woman in debt marry and dye before the debt be recovered against her though leaving to her Husband much more than the value of the debt yet is he not lyable in Law to pay one penny of her debts after her decease because he neither is her Executor nor Administrator nor came to her Goods by wrong Insomuch that a Woman indebted One thousand pound and having Leases and other immoveable Goods to the value of Three or Four thousand pound marrying with A. B. and then dye before the debt be recovered against her In this Case the Husband shall have all the value of his Wifes Estate and yet in Law not be lyable for her debts during her life he is lyable but not afterwards This seems a defect in the Law whereby Creditors are at a loss without remedy therefore let them sue in her life-time for Lex fit vigilantibus non dormientibus 6. If a man be indebted and dye Intestate or if the Executors of one who hath made a Will refuse to be Executors whereby the Goods do come to the hands of the Ordinary the Creditors may have a Writ of Debt against the Ordinary by the Stat. of West 2. cap. 19. and in this case he must be sued by the name of Ordinary But after Administration committed the Ordinary shall not be sued 7. An Executor may make himself chargeable of his own proper Goods either by Omission or by Commission By Omission as when he being sued upon an Obligation or the like there being at the same time a Judgement in force against him or the deceased and hath but just enough in his hands to satisfie that Judgement yet doth not plead this in Bar of the present Action but suffers the Plaintiff to recover against him in this Case he must satisfie the second debt out of his own Estate Or by Commission as when he doth something that is a Wast in him and thereupon a Devastavit is return'd against him in which case he must answer as much as he wasted out of his own Estate or when a sute being against him he pleads such a false Plea therein as tends to the perpetual Bar of the Plaintiffs Action and yet being of a thing within his certain knowledge as when he pleads he is not Executor nor ever Administred as Executor and upon tryal of this issue it be found against him that he is a lawful Executor or Executor in his own wrong in this Case he must satisfie the debt out of his own Estate whether he hath Assets or not and the Execution had upon the Judgement shall be levied upon his own proper Goods Likewise if an Executor or Administrator sued doth plead to the Action Plenè Administravit and upon Tryal it be found against him in this Case if he have any of the deceaseds Goods left in his hands the Execution shall be of them but if he have none such then the Execution shall be and he shall be charged for so much as is found to the value thereof to be in his hands of his own proper Goods But where one is sued upon a Promise made by the Testator and he plead Non Assumpsit to it or where he is sued upon a Deed made by the Testator and he plead Non est factum to it or the like and these issues upon Tryal are found against him or when he shall confess the Action or suffer a Judgement to pass by default against him or plead any vain Plea In all these Cases he shall not be chargeable of his own Estate neither shall the Judgement and Execution in these Cases be de bonis Propriis but de bonis Testatoris only for the Debt and de bonis Propriis for the Costs And yet if an Executor or Administrator shall intreat a Creditor to forbear his debt until a day and then promise to pay him by this promise he hath made himself chargeable as for his own debt howbeit it shall be allowed him upon his account And if a debt be recovered against one who dieth before Execution sued leaving Goods sufficient to satisfie then shall not the Land descended to the Heir be charged therewith nor by like reason any Land conveyed after Judgement Or if a Creditor be made Executor by his Debtor and pay himself part out of the Goods he cannot sue the Heir for the rest because the debt cannot be apportioned but otherwise he may 8. In all Cases where a man is charged of his own Estate and the Execution be de bonis Propriis the Judgement is ever de bonis Testatoris And the method or form of proceedings in such cases is this viz. The first Execution is against
the Executor de bonis Testatoris and not de bonis Propriis And after a Devastavit return'd by the Sheriff and not before against the Executor or Administrator a new Execution is directed to the Sheriff to levy the debt de bonis Testatoris and if there be none of them to be found in his hands then to levy them de bonis Propriis Executoris vel Administratoris Therefore if an Executor or Administrator be sued by a Creditor and the Executor or Administrator plead a Plenè Administravit generally or plead specially that he hath no more but to satisfie a Judgement or the like and upon tryal this issue be found against him and that he hath in all or in part enough to satisfie the debt In these Cases the Judgement is de bonis Testatoris and thereupon an Execution is as in other cases to levy the debt de bonis Testatoris in the hands of the Executor or Administrator and the Costs de bonis Propriis And upon the Return of the Sheriff a special Execution doth issue forth to levy the money de bonis Testatoris And if it appear that he hath wasted the Goods then that he shall satisfie the Execution de bonis Propriis And hereupon also the Plaintiff may if he please have a Capias against the Body or an Elegit against the Lands of the Executor or Administrator and other course of Proceedings cannot nor may be had in this Case against the Executor or Administrator But a Sute Commenced against an Executor as Administrator or against an Administrator as Executor will prove invalid for neither the one nor the other is chargeable with the payment of Debts or Legacies in such an Erroneous Sute But where an Action of Debt was brought against Two Executors whereof the one appeared and confessed the Action the other making default thereupon Judgement was given to Recover against them both de bonis Testatoris in their hands and Execution accordingly And upon this Execution the Sheriff returned a Devastavit against that Executor only that made default and hereupon a Scire Facias went out against him alone and afterwards an Execution against him alone de bonis Propriis And in a Fieri Facias upon a Recovery against Executors the Sheriff Returning a Devastaverunt a Writ of Execution issues against the deceaseds Goods and if there were none such then against the Executors Goods 9. If one by Bond or Covenant oblige himself to pay such a summ of money at such a day not mentioning his Executors at all yet is the Executor also bound as included in the Name or Person of the Testator For if a man bindeth himself his Executors are also bound though they be not named in the Bond but so it is not of the Heir And in this respect the Executor doth more actually represent the person of the Testator than the Heir doth the person of the Ancestor So that every Bond or Covenant by the Testator made for payment of money or the like though he doth not Covenant for nor bind Himself and his Executors by express words reacheth unto his Executor also although he be not named And yet the Heir is not bound if he be not expresly named by the word Heir though there be never so great Assets or Land descended to him And although Executors do so represent their Testators persons that they stand lyable for their Debts though not mentioned in the Bonds yet where a man is bound that he will not sue upon such a Bond and dies if his Executors afterwards sue this is held to be no forfeiture of the Bond. So where one is bound to pay Ten pounds within a moneth after Request made to him and he dies before Request made it sufficeth not to make it to the Executor And although in a Judgment had against a Testator in his life-time no mention be made of his Executors yet are they lyable in that case for to debts upon Record and to debts and dammages already recovered against the Testator and to debts by recognizance the Executor is lyable though he be not named So likewise do Executors stand charged with other inferiour debts upon Record as Issues forfeited Fines imposed by Justices at Westminster or at Assizes Quarter-Sessions Commissioners of Sewers and the like 10. An Obligation made after a Contract dissolveth the Contract So that if a man do make a Contract to pay certain money for a thing bought by him if he make an Obligation for the money the Contract is discharged and he shall not have an Action of Debt upon the Contract And therefore if A. and B. do bargain with C. to pay him One hundred pound for Corn or other things and afterwards C. taketh some Writing Obligatory of A. only and then B. dieth in this Case the Executors of B. are discharged because they stood charged only by the Contract which is extinguished by the said specialty for such writing Obligatory doth determine or drown any duty by a meer Contract because Specialty is of a higher nature And although an Executor not named in the Obligation be notwithstanding bound as aforesaid supposing also that he that is named in the Testament hath in due form Proved the same yet is he not thereby lyable or obliged to satisfie the Creditors of the deceased as one that hath Administred unless also he hath paid the Fees due for the same out of the Goods of the deceased It was Adjuged that if an Executor pay a debt of his Testators with his own proper Goods he may retain as much in value of the Testators Goods And 6 Ed. 6. in debt by Shelley vers Sackvile Executor of H. Brown he pleaded Plenè Administravit and upon Evidence the Plaintiff shewed That the Defendant had a Farm belonging to the Testator in his hands to the value of Two hundred Marks the Defendant shewed how he had expended Two hundred Marks in payment of the Testators debts And the Question upon the Evidence was whether the Defendants Plea was receivable And upon Consultation with the Justices of B. R. it shall be received to maintain the Issue of Fully Administred for so much as it amounted unto because to make such a Retainer and Deduction as to alter the property is one and the same F. H. Executrix of F. brought Detinue of Goods against A. The Case was F. had made a will in writing and thereby given many Legacies and at the end of his Will gave the Residue of his Goods to F. his Wife whom he made his sole Executrix for the payment of his debts and to dispose thereof for the wealth of his Soul F. the Wife after takes H. to Husband who made A. the Defendant his Executor and died and against A. doth F. H. bring Detinue for the Goods of F. And it was adjudged for the Plaintiff because F. H. doth not here take the Residue of the Goods as a Devisee
they both live but after her death it may be otherwise yea and if a void Administration happen to be committed and the Administrator wast the Goods and then Administration be committed to another in this case the former Administrator may be charged by the Creditors for the wast done in his time 4. But for an Executor or Administrator without fraud to sell the Goods of the deceased under value especially where more cannot conveniently be made of them is no wast Nor shall one Executor or Administrator be charged for the wast done by another for where there are many joynt-Executors if only one of them doth commit the wast he alone shall suffer for it So the Executor or Administrator committing Wast in the Gift or Sale of any of the Goods of the Defunct shall answer it alone and not he to whom the Goods are so given or sold yet the Executor or Administrator of such an Executor or Administrator shall not be question'd for it after his death Also an Executor or Administrator may lawfully sell or convert the deceaseds Goods to his own use so as he convert the money thereof to the deceaseds use in payment of Debts or the like and pay so much of his own money as the Goods so converted to his use are worth and this shall not be imputed to him as a Wast Yea he may sell any special Legacy that is bequeathed and even this shall be no Wast in him though it be a wrong to the Legatee in case there be Assets to pay Debts besides But when he hath enough to pay all the Debts and Legacies then he may dispose of the whole Estate how he please without any prejudice to himself or others And note That the wasting Executor doth not incurr dammage or make his own Goods lyable for satisfaction for the Wast further than the value of the Testators Goods so wasted or mis-administred doth amount unto An Action of Debt was brought against Two Executors one appeared and confessed the Action the other made default and Judgement was given to recover de bonis Testatoris in both their hands whereupon a Scire Facias issued The Sheriff returned Nihil but he who made default had wasted the Goods upon which a Scire Feci issued against him who had wasted the Goods and upon Return of the Scire Feci Execution was awarded of his own proper Goods only without his Co-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
a Bond or Obligation is bequeathed in the latter a Discharge or Release 4. And when a Creditor bequeaths a Debt it is not alway material to insert any certain Sum of Money in the Legacy of that Debt for suppose the Testator sayes I bequeath the 10 l. which A. B. owes me be it to A. B. himself or any other in that case a right rather than any certain Sum is understood to be given because if A. B. owed the Testator nothing then nothing is bequeathed and so the Legacy Fruitless 5. But now on the other hand when a Debtor bequeaths what he owes and the Legacy be given to the Creditor himself In that case it is very material to see whether any certain Sum be express'd in the Legacy or not for if there be as when a Debtor-Testator saith I bequeath to A. B. 10 l. which I owe him In that case not so much a bare right only as a certain Sum of Money seems to be bequeathed him for which reason a Legacy of 10 l. will be good to A. B. albeit the Testator owed him nothing 6. But if there were no certain Sum express'd by the Debtor-Testator as if he had only said I bequeath to A. B. what I owe him It is a Fruitless Legacy if he owed him nothing In like manner if a Testator saith I give my Wife what I had with her in Marriage or her Marriage Portion if he had nothing with her in Marriage the Legacy signifies nothing yet if he had said I give my Wife 100 l. which I had with her in Marriage or for her Marriage-Portion though in truth he had nothing with her the Legacy shall be good and is worth her 100 l. Or having had 100 l. with her shall in his Will say I give my Wife 200 l. which I had with her in Marriage the Legacy is good for 200 l. yea though he should therein refer himself to the Articles of Marriage and add as is contained in certain Covenants of Marriage made between us The Reason is because the Law more considers the thing it self when in terminis express'd in a Legacy than any false demonstration thereof Unless it can be sufficiently proved That the Testator meant otherwise than he spake or that he err'd in supposing that to be true which was not so In which case the Legacy avails nothing albeit a certain Sum were in terminis express'd by him 7. For which Reason the Legacy is not good in such case unless he certainly knew he owed nothing to the Legatary otherwise it is if he supposed he did when indeed he did not And the Reason why a Legacy given by a Creditor is nothing worth though the Sum be express'd if nothing be due to him And quite otherwise in the like case if the Legacy be given by a Debtor the Reason I say of this Difference is because the Creditor is understood to bequeath only a Debt Bond or Obligation but the Debtor doth bequeath a certain Sum by Name or the very thing it self expresly 8. A Testator in his last Will and Testament inter alia saith whereas I have in my custody a certain Instrument of Writing wherein A. B. stands bound in the Sum of 400 l. for the payment of 200 l. to C. D. I will that my Executor shall restore the said Bond to C. D. or pay him 200 l. After the Testators death the Bond cannot be found among any of his Writings nor any knowledge thereof possibly had In this case Judgment was given against the Executor and he condemn'd in 200 l. to C. D. as a good Legacy to him by the said Testator 9. When a Debt is bequeathed whereon nothing is due the Bequest is Fruitless if the Testator believed it to be a good Debt albeit the Sum or quantity thereof were express'd in the same But if the Testator when he bequeathed such Debt knew there was nothing due upon it the Legacy is good And although he who bequeaths a Bond bequeaths the Debt contain'd therein yet he that bequeaths to his Debtor the Silver Cup or the like which he had of his in pawn for 5 l. doth not thereby bequeath him that Debt of 5 l. The Reason is because there is nothing but the Pawn or Pledge released the duty and personal obligation still remains Note that he who bequeaths his Debts is understood to bequeath his Credits that is the Moneys or what else is owing to him for Debts as was before observed are taken both Actively and Passively but in this sense of a Creditors bequeathing them they are only taken Actively 10. If a Testator bequeath to A. B. whatever C. D. owe him and C. D. at the same time wrongfully detain'd the possession of certain Lands from the Testator these Lands shall pass by the Devise to A. B. as well as the Money which C. D. owed the Testator as hath been adjudged not at the Common but Civil Law for it is more than presumed that at the Common Law such words though in a Will not Nuncupative but Written are no capable of being by any legal Intellect strain'd to a Latitude of that extent or whether he that bequeaths his Books of Accompt or his Shop Books shall thereby be understood to bequeath the Debts contained therein as also the Moneys in the said Books Calendaried by way of Accompt and design'd for Trade as is likewise evident by the Civil Law 11. Although the Bequest of a Debt is a good Legacy so long as it is a Debt and the Bequest unrevoked yet the Payment of a Debt to the Testator in his life-time extinguisheth the Legacy thereof formerly Bequeathed by him Not so in case it were paid to his Executor soon after his Decease And this holds true albeit the Debt consisted in some certain specifical thing if it perish'd in the Testators time otherwise the Legacy is good Likewise the Testators giving an Acquittance to the Debtor doth extinguish a bequeathed Debt The Reason hereof is because by all these wayes the very substance it self of the Debt which was the thing bequeathed is destroyed yet here Note withall That if a Testator doth demand a Debt which he had bequeathed not with any mind of abating the Bequest but fearing the failure or future Insolvency of the Debtor and shall after keep this Money by it self with some signification therewith what Money it was in such case the Legacy is good notwithstanding such payment precedent which holds yet more strong in case the Testator demands it not but the Debtor himself comes and offers it and with such earnestness as the Creditor-Testator cannot well refuse it And if afterwards the Testator makes a Purchase with part or all of this money which he so demanded not with any mind of abating the Legacy as aforesaid the Bequest remains still good to the Legatary So that if I bequeath
own false Plea or for that he hath wasted the deceaseds Goods But if the Administrator die his Executors do not succeed him in that Administration but the Ordinary is to commit a new Administration The Law is the same when an Executor dyeth before he hath Proved the Will or Administred any of the Goods in which Case a new Administration is to be granted to the Widow or next of Kin of the first Testator with the Will annexed unless he had also bequeathed the residue of his Goods unto the said Executor for in that case the Administration of his Goods belongs unto the Widow or next of Kin of the Executor and not of the Testator Or if an Executor be made Universal Legatary and die before he hath Proved the Will of the Testator in this case likewise the Administration of the Testators Goods doth belong to the next of Kin of such universal Legatary and not of the Testator 4. If a Stranger that is neither Administrator nor Executor take to himself the deceaseds Goods and Administer of his own wrong he shall be charged and sued as an Executor and not as an Administrator in any Action that is brought against him by any Creditor But if the Ordinary make a Letter Ad Colligendum bona Defuncti he that hath such a Letter is no Administrator but the Action lieth against the Ordinary himself as well as if he took the Goods into his own hands or by the hands of any of his Servants by any other Command or Order And Note that if an Administrator doth alienate or convert to his own use all the Goods which did belong to the Intestate in this case an Action doth lye against the Executor of that Administrator and is lyable to be charged for the debts due by the Intestate which is otherwise of an Executors Executor 5. An Administration must pass under Seal in Writing not by word of mouth for the Ordinary cannot commit Administration by word of mouth otherwise it is if it be entered into his Registry though Letters of Administration be not formerly drawn Yet it may be granted as well upon condition as absolutely and as well for part as for the whole Estate so that a man dying possessed of Goods in Two Provinces making his Will of the Goods only in one of them and dying Intestate as to the Goods in the other Province Administration may be granted as to the Goods of that Province whereof he died Intestate likewise Administration may be granted only for or during some certain limited time Also an Executorship limited to a certain time the Ordinary ought to grant Administration after the expiration thereof or if a man appoint an Executorship not to begin till some certain time after the Testators death Administration is to be granted till that time doth Commence In like manner where an Executor is made conditionally and the condition yet depending it is for prevention of prejudice to Creditors and Legataries Provided that the Ordinary may commit Administration to the said conditional Executor only during the dependency of the condition but upon infringement or defect of the condition Administration is to be granted to the next of Kin. 6. There is also an Administrator durante minori aetate which is a special kind of Administration and is only in case where an Infant under the Age of Seventeen years is made Executor in which case the Administration is committed to one or more of the next of Kin of the Infant during his Minority that is till he be capable of the Executorship which is at the Age of Seventeen years the power of such an Administrator is equivalent to the power of other Administrators and therefore if it be granted during the Minority of several joynt-Executors all under the Age of Seventeen years and one of them dye or attain to the Age of Seventeen years then is the Administration determined so also is it if a Feme-Minor Executrix take a Husband of that Age. And if such an Administrator durante minori aetate get a Judgement and before Execution the Infant-Executor doth come of Age the Executor himself may have Execution of this Judgement 7. To the several reasons and causes for granting of Letters of Administration mentioned in the Premises may be added That if a Testament be not made with all Freedome as it ought to be viz. without fear of Loss or hope of Gain without Threats Flattery Fraud or Collusion without Errour Uncertainty Fallacy Imperfection Cancelling or Revocation or if the Testator be a person incapable of making a Testament or if his Will contrary to the nature of Wills depend upon another mans Will or otherwise the party dying Intestate as aforesaid or Testate and the Executor refuse to Prove the Will In all these cases the Administration is to be committed to the Widow or next of Kin to the Intestate sometimes with the Will annexed if there be any and in some cases not But the Administration is not to be committed according to the Statutes to the Widow or next of Kin in case of suspending the Probate by reason of the yet dependency of some unaccomplished condition in the Will but to him that is made Executor and that only for and during so long time as the condition dependeth for in this case the party is not Intestate so long as the condition is accomplishable or performable Again if the Mind Will and Intention of an intestate touching the disposition of his Goods and Chattels be declared though for want of making an Executor he dye Intestate so as Administration is to be committed yet for that here is not only an inchoation but in part a progression of a Will it is to be annexed to the Letters of Administration and to be observed and performed by the Administrator In Detinue brought by an Administrator of a Chain of which the Intèstate died possessed and which after came to the Defendants hands the case was upon a special Verdict That the Administration was committed to the Defendant in London by the Bishop of Cork being in London but they did not find that the Defendant was possessed of the Chain in London and in this Case these Points were resolved 1. That a Bishop of Ireland being in England might commit Administration of things in Ireland because it is but a Power and Authority which follows his person wheresoever it is 2. That an Administrator made by a Bishop of Ireland could not bring an Action here as Administrator because of the Letters of Administration granted in Ireland there could be no Tryal here 3. That an Administrator might declare of his own possession although he was never possessed if the Intestate at the time of his death was possessed for that the Law casts a possession upon him 4. That upon a general Issue pleaded the Jury might find a forreign matter as a thing done out of England 5. It was resolved