exceptions be but small and such as do but in part diminish the Witnesses credit as the exception of friendship householdservant or suspition of some small fault then the number may supply the defect and so the Testimony of three or four Witnesses not altogether cleer from those exceptions is as good as the Testimony of two Witnesses without all exception Francis Mantica de Conject ult voluntat lib. 6. Tit. 3. numb 8. Swin part 4. sect 21. numb 3. 29. And sometimes the Testimony of one Witness is sufficient as where the Testator in his life-time commits something in secret to some one person being loth perhaps that any other should know it and willeth that that same person shall be credited for the Declaration of his Will in such case that person alone is sufficient to prove the Contents of the last Will and Testament of the person deceased Olden de probation fol. 286. b. Swin part 4. sect 21. numb 4. 30. The Testimony of a Legatary also is allowed in probate of Wills but not for his or their own Legacies but for all the rest of the VVill it is good enough Justin inst l. 2. Tit. de Test ordinan numb 11. Swin part 4. sect 21. numb 11. Porcius in d. sect Legatar 31. But note if a man in perfect health be demanded who shall be his Executor or have his goods after his death which question is very familiar and common amongst companions and forth with he names some person to whom he saith he will leave his goods after his death This is not to be taken for a Testament or last Will neither is that person named to be admitted Executor nor to have his goods unless it be proved that the Testator at the time when the words were spoken had Animum Testandi that is to say a full mind and resolute purpose at that time to make his Testament or last Will and this purpose must be proved by circumstances as wel as by words as that he framed himself very seriously to the making of the same desiring them that were present to bear witness of his Will c. Justin. Inst. l. 2. Tit. de Milit. Testamento numb 1. Swin part 1. sect 3. numb 24. Menoch de Arbitria Judicis c. 496. 32. Note that the last Testament doth always make void the first except in some special cases as where the latter is made through just fear or by cunning and deceitful fraud or flattery or at the importunate request and desire of another person who expects to reap benefit thereby especially if the Testator be very sick at such time and do it to be at quiet and rest in these cases the latter Testament shall not make void the former but there must be Witnesses to prove these things if the parties concerned intend to make void the latter Testament Menoch de Arbitrio Jud. c. 395. numb 41. Socin Jun. Consil 14. 148. vol. 2. numb 15. Simo. de Praetis de Interpret ult voluntat l. 4. fol. 226. numb 49. Swin part 7. sect 3. Numb 1. sect 4. numb 3. 6. sect 14. numb 3 5. Paris Consil 10. l. 3. numb 4. Noyes Max. pag. 97. 33. Also if the Testator have made his Will wherein he hath bequeathed several Legacies to his own Children or to his Brothers and afterwards makes another Will in favour of other persons this last Will shall not revoke this first without express words of revocation of the first Will as is shewed before in the first Chapter Numb 17. Mich. 2 Car. 1. Eyres and Eyres Case in Chancery Cro. 1. part Rep. fo Swin part 1. sect 15. num 5. 34. But in other Wills and Testaments the latter doth make void the former albeit the first were a written Will or Testament and the latter but a Nuncupative one or that there were twenty Witnesses to the first and but two to the second and that ipso jure although there be no mention in the second Testament of revoking the former unless there be a Clause Derogatory in the former Testament as where the Testator saith in the first If I make any Testament hereafter I will that the same shall be of no force then in such Case it is most safe and convenient in the latter Testament to revoke the first by saying I make this last Will and Testament Notwithstanding that Clause Derogatory in my former whereby I would that no Will or Testament afterward to be made by me should be of any force Vasq de succes Resoluc l. 1. sect 1. num 26. Pasc 14 Eliz. Dyer fol. 310. Mich. Grass Thesaur com opin sect Testam Quest 99. num 4 5. Swin part 7. sect 14. num 4. 11 12 13 14 15 16 17 18. Perk. num 478. Paul de Cast Consil 206. Vol. 1. 35. Also where the Testator hath made two Testaments a former and a latter and afterwards lying sick they are both brought unto him and being desired to shew which he intends shall stand and he saith that the first should be his Last Will or if he take that of the first date and deliver it for his last Will then in such Case that Will shall stand and the other shall be void Perkins num 479. Mich. 44 E. 3. fol. 33. Pacis Consultum pag. 81. 36. Likewise if an Executor be named in the first Testament and none in the second Will then the first Testament shall stand and the latter shall be added only by way of Codicil Vigel Method Jur. Civilis part 4. lib 9. c. 23. in princip Swin part 7. sect 14 num 5. 37. Where it is said before that where Lands are devised the will must be in writing and done in the life-time of the Testator yet if the Clerk be skilful in the Law and takes Notes from the mouth of the Testator for the devise of Lands Tenements and Hereditaments and afterwards proceeds to write the same in Form but before it be finished or shewed to the Testator he departs this life yet this is held and adjudged a good Will in writing within the Statute of 32 H. 8. to convey Lands Tenements or Hereditaments Mich. 6 E. 6. Sackvil and Browns Case Dyer fol. 72. 38. Also a written VVill done in the life-time of the Testator or by Notes as abovesaid is good to convey Lands though it be unsealed or unsubscribed nor no Executor named therein and such a Will which only concerns the bequeathing of Lands Tenements or Hereditaments ought to be proved in the Chancery Hill 22 Car. 1. Pasch 23 Car. 1. B. R. Styles Regest practicale p. 357. Pacis Consultum p. 80. Noye's Maximes pag. 97. 39. If the Testator after he hath begun his Will and before he have finished it be suddenly strucken with Death or Insanity of mind or some other impediment so that he cannot finish the same or if he have begun the same and deferreth the finishing thereof till some other time and in the mean time dieth or otherwise becometh
to the Childe or Children and the other third part called the deathâ— part is left to his disposing and it no disposition be made thereof it falls to the Executor but note here that if the Childe or Children were Heir to the Testator or were advanced by the Testator in his life-time then the Testator may devise one half of the cleer goods and the other half shall go to his VVife F. N. B. Bre. de Rat. part bonor Bro. eod tit N. 6. M. 7. E. 4. fol. 21. a. Brac. li. 2. cap. 26. Fleta li. 2. cap. 50. Glan li. 2. cap. 20. Co. 2 part Inst fol. 33. Swin part 3. sect 16. Refor Legum Ecclesiast tit lest cap. 10. 180. Note where the VVife and Children ought to have a rateable part of the Goods of the deceased be it third part or half as the case is there also they ought to have a like part of the debts due by the deceased after they are recovered by the Executor or Administrator but of Leases they can have no rateable part where they use to have a rateable part of the moveable Goods and Debts recovered unless it be by special custom of the City County Deanry or place where the Testator dwelled and had such Leases Swiâ— part 3. sect 16. F. N. B. Breve de Rationabl part bon 181. This rateable part of thâ— Goods to the Wife and Children iâ— saved to them by the Statute of Magna Charta but note the Wife oâ— Children cannot sue the Executor oâ— Administrator for their rateable parts till all the Testators Debts bâ— paid and then what remains is to be divided according to the Ruleâ— aforesaid into two or three parts before any Legacies be paid foâ— they must all be paid out of thâ— deaths part after the division Magna Charta C. 18. Regist. fol. 142. 〈◊〉 F. N. B. 122. b. M. 7. E. 4. fol. 21. aâ— Co. 2 part Inst fol. 33. CHAP. VIII Several Cases concerning the bequeathing of Legacies and also touching Devises 182. AS an Executor may be appointed divers ways as is â—newed before chap. 5. so also a Legacie may be given after divers ways either simply or conditionaly c. Swin part 4. sect 3. num â— 183. That Legacie is said to be pure and simple which is given without a condition annexed to it and as in appointing an Executor it matters not after what form of words it be so it is in the bequeathing of a Legacie for it skills not after what form the same be given so that the Testators meaning do but appear whether it be in Goods and Chattels or Lands and Tenements Swin part 4. sect 4. num 18. 184. Note that a Legacy may be given from a certain time or until a certain time albeit the Legatary dye in the mean time before the day come yet the Executors or Administrators of the Legatary may recover the same when once the day is past as the Legatary himself might have done iâ— he had lived so long unless thâ— meaning of the Testator be to thâ— contrary or that it be such a thing as cannot be transmitted to the Executor as personal service but if thâ— Legacy be given after an uncertaiâ— time as where the Testator give thee an hundred pounds when hâ— Son shall dye or the like there 〈◊〉 thou dye before the time come thâ— Executors or Administrators caâ— then recover nothing So note thâ— diversitie Mich. Grass thesaur com opin sect Legat. quaest 43. Mantâ— ca de conject ult volunt li. 11. tit 2â— num 8. Swin part 4. sect 17. Refor Legum Eccles tit Testament cap. 26. 185. If a man devise to his Daughter an hundred pounds when she shall be married or to his Son when he shall be of the Age of twenty one years here if they dye before the time appointed their Executors shall not have it But if the devise were of an hundred pounds to the Daughter to be paid her when she shall be married or to the Son to be paid him when he shall attain the age of twenty one years in such case if they dye before such time then their Executors may recover the Legacy Tr. 1653. B. R. in Dumlowe Shawes Ca. Hughes grand Abridg. 1 part pag. 664. cap. 14. 186. Note that a Legatary may not of his own Authority take the Legacy and serve himself but must receive the same at the hands of the Executor except in some cases as where the Legatary is possessed of his Legacy at the time of the Testators deaths for in such cases he may retain and keep it if there be sufficient assets besides in the Executors hands to pay the Testators Debt or if the Testators give license to the Legatary to enter to his Legacie then he may do it without the Executors consent and if he be both Legatary and Executor then he may serve himself Perkins sect 488. Hernes Law of Con. pag. 88. Socin Jun. Consil 111. vol. 1. Swin part sect 4. num 23. Perkins sect 570 572 573. 187. But the Legatary hath no remedy by the Common Law for any Legacie of goods to him bequeathed if the Executor will not deliver the same but he must in this case have a Citation for the Executor to appear before the Ordinary or other competent Ecclesiastical Judge to answer him in cause of his Legacie except in case where a particular thing is bequeathed as the Testators Horse or Signet c. and in such case the Legatary may sue at Common Law for the same Bro. devise num 3 6 14 27 30. Terms of the Law verbum Devise Swin part 4. sect 4. num 23. 188. Also if the Testator will that his Executors shall sell his Land and pay such and such Legacies out of the Moneys in this case the Legataries may sue at Common Law and not in the Spiritual Court for their Legacies Mich. 5 P. M. Dyer fol. 151 152. Vide M. 29. 30 Eliz. C. B. Germyes Case Leon. Rep. fol. 87. Tr. 17 Jac. C. B. Rott 895. Edwards Graves Case Hob. Rep. fol. 265. 189. But if the Legacies he granted to be paid out of Leases and not out of fee-simple-Fee-simple-Lands then the Legatary may sue in the Spiritual Court for such Legacie Brownlowes 1 part Rep. fol. 34. 190. Testamento cum duo inter se pugnantia reperiuntur ultimum raâ—um est If there be divers devises of one thing in one Will the last devise taketh place only Co. on Litt. fol. 112. b. 191. If the Testator bequeath to A B all his Goods in this case it is the opinion of some that A B shall have the Testators whole Estate actively and passively onely his Lands Tenements and Freehold excepted being in effect his Executor or Heirs as the Civil Law terms him and is hereby chargeable with the Testator debts so far as the Goods will extend Gloss in L. his verbis sect de Haered Instit Swin part 7. sect 10. 192. But others are
to give an hundred pounds doth give but fifty pound in these cases the Legatary may recover as much as the Testator did mean and intend to give be it more or less then the sum mentioned Swin part 7. sect 5. num 13. 217. If the Testator bequeath an hundred pounds to the Church not mentioning what Church it shall then be understood of his Parish-Church or if he name a Church and there be divers there of the same name and none of them his Parish-Church then the Executor if he prove the Will or the Ordinary if he refuseth may bestow the same on which Church he will but if the Testators Parish-Church be of the same name it ought then to be bestowed there Mich. Grass thesaur com opin sect Legat. q. 64. Swin part 7. sect 8. Franc. Mantiâ— de conject ult vol. li. 8. tit 6. 218. Where the Testator doth bequeath one half of his Goods to one person and makes another his Executor willing and appointing that all his Goods shall be divided betwixt them in this case the Legatary shall have half before debts paid and the Executor the remainder after debts paid as where the Testator hath Goods to the value of an hundred pounds and oweth twenty pounds out of the same here the Legatary shall have fifty pounds and the Executor shall pay the twenty pounds debt out of his half 5 Mariae Dyer fol. 164. Goldesborough Rep. pag. 149. Pl. 74. Hil. 43 El. C. B. Swin part 7. sect 10. Cowels Inst. pag. 146. 219. If a man bequeath twenty pounds to A and twenty pounds to B and twenty pounds to C and makes his Executor and dyes having Goods in all but to the value of twenty pounds of which Goods the Executor makes an Inventary in this case he may pay which of the three he pleases his whole Legacie and the other two are without remedy or he may if he please pay every one of them a rateable part and if in case the Executor make no Inventaâ—â— yet he is chargeable no further â—â—en the value of the Goods and so 〈◊〉 every Legatary in such case should 〈◊〉 him they must prove sufficiency of goods or otherwise they should â—et nothing Plo. com fol. 545. in Case â—ter Parham and Yardly Dr. and â—ud li. 2. cap. 10. 220. If the Testator say I will â—at A B shall have an Horse here 〈◊〉 Election belongs to the Legatary but if he had said I will that my â—xecutor give to A B an Horse then the Election belongs to the Executor and if the words of Election be directed to neither of them then the Legatary shall make the Election if there be any such thing extant amongst the Testators good as is bequeathed and if not then the Executor is to make the Election and in case where the Legatary chuseth he must not take the very best unless there be no more but two of the things extant for then he may chuse the best and so he may do when the Testator grants him the Election and as the Legatary may not chuse the best neither may the Executor obtrude the worst of those things extant and where there is no such thing extant then the Executor iâ— to provide a competent thing for thâ— Legatary Mich. Grass thesaur com opin sect Legat. q. 62. num 2 and Mins in D. sect si generaliter num 〈◊〉 Swin part 7. sect 10. Co. on Litt. fo 144. b. 221. If the Testator bequeat two Horses to two Men having 〈◊〉 more and one of them is a greaâ— deal better then the other in this case he that is first named in the Testament shall have the Election Co. on Litt. fol. 144. b. 2 H. 7 23. Swin part 7. sect 10. 222. If the Testator give to A B twenty pounds if he will in such case A B must express his willingness by some means or else the Legacy is not due and if he die before such expression then the Legacy is lost and shall not go to his Executors or Administrators which otherwise it would if no such condition had been expressed Swin part 4. Sect. 6. num 7. 223. If an Executor have a Legacy left him by his Testator and refuseth to stand to the Executorship in such a Case he looseth his Legacy Gribald Thesaur com opin verb. Tutor Swin part 6. sect 2. in sine Refor Leg. Eccles Tit. Testament C. 23 and 24. 224. But if the Executor be not duly admonished to take the Executorship upon him then if he be the Testators Kinsman or such a person to whom the Testator would have given the Legacy though he did not perform the Will and take the Office upon him in such case he shall not loose the Legacy then by his refusal of the Executorship neither shall the Wife loose her thirds nor the Children their filial Portions nor the Creditor his debt if any of them be made Executors and refuse to take the Office upon them Swin part 6. sect 3. num 15. Sichard in lib. Si legatarius cap. de legat 225. If a man by his Will devise all his Lands and Tenements to A B in this case not only all his Land and Tenements which the Testatoâ— hath in possession do pass but also those which he hath in reversion also by vertue of the word Tenements Terms of the Law verb. Devise Cowels Inst pa. 144. Swin part 4. sect 4 num 19. 226. But if the Testator have both Lands in Fee and Lands in Lease for years and deviseth all his Lands and Tenements in such case the Lands in Fee only pass and not the Lands in Lease for years but if he have none but lands for years in Lease only then those lands shall pass by vertue of such devise Tr. 7 Jac. B. R. Rose and Bartlets Case Cro. 1 part Rep. fol. 213. Noys Maxims pag. 99. 227. If lands be devised to a man to have to him for evermore or to have to him and his Assigns in both these cases a Fee-simple doth pass to the Devisee but if such a Gift or Grant were made by Deed it would carry an estate but for life without the word Heirs were in it Perkins sect 557. M. 22 E. 3. Devise 20. Terms of Law verbum Devise Swin part 4. sect 4. num 19. 228. Also if a man devise his lands to another to give or sell or do therewith at his pleasure here he hath a Fee-simple also and if lands be devised to one and his Heirs males this shall amount to an Estate in tayl but if such words be in a Feoffment it shall be taken for a Fee-simple because it doth not appear of what body the heirs Males shall be begotten Terms of the Law verb. Devise Co. on Lit. fol. 9. b. Swin part 4. sect 4. Cowels Inst pag. 144. 229. Also if one devise to an Infant in the Mothers womb it is good but such a Feoffment Gift or Grant is void and if one will that his Soâ— shall have his
land after the death of his Wife in this case the Wife by the favourable interpretation of such Will shall have the land for term of her life Finches Law pag. 172. 13 H. 7. 13. Terms of the Law verb. Devise Cowels Inst pag. 144. Swin part 4. sect 4. Noyes Maxims pag. 100. 230. If a man devise all his lands in A. to his two Daughters and makes them Executrixes and afterwards purchaseth more lands in A. and then dies without a new publication of his Will and expressing of this land newly bought therein in this case this land newly bought doth not pass by the same Will H. 43 El. C. B. Beckford and Parncotes Ca. Goldsboroughs Rep. pag. 150. pl. 77. 231. A man having four Daughters A B C and D devises his lands to his Wife for her life and after her decease the same to be equally divided amongst his Daughters or their Heirs A one of the Daughters died before the Mother and after the Mothers death the heir of A sued for a fourth part and adjudged for the Heir by vertue of the disjunctive or but if it had been to have been divided amongst his Daughters and their Heirs this word had altered the case and would have given the Fee to the three surviving Sisters Mich. 1 Car. 1. B. R. Rot. 189. Taylor and Hodgskies Case Godbolts Rep. fol. 363. 232. If one devise his lands to another Man and his Heirs and the Devisee dieth in the life-time of the Devisor and afterwards the Devisor dieth in this case the Heirs of the Devisee shall not have the land Plo. Com. fol. 342. in Brett and Rigdens Case 233. If a man seized of lands in Fee sowe the same with Corn and afterwards deviseth the land to A B and dieth before the Corn be severed in this case the Devisee shall have the Corn a swell as the land but it is otherwise where the lands descend to the Heir for the Executors or Administrators shall have the Corn sown at the Testators death Mich. 20 Jac. C. B. Spencers Case Winches Rep. fol. 51. 234. A man devised his Messuage whereof he was seized in Soccage in Fee by these words I devise my Messuage where I dwelt to my Cozen H and her Assigns for eight years and my Cozen H shall have all my Inheritances if the Law will and this was adjudged a good devise in Fee of the Messuage and by the general words of the Will all the Inheritances pass also Mich. 11 Jac. C. B. Wedlock and Hardings Case Godbolts Rep. fol. 208. 235. If a man devise his Lands to the Heirs-Males of any of his Sons or next of Kin such a devise is void for the uncertainty thereof Hil. 2 Car. 1. C. B. Rott 1288. in Hunt and Fishers Case and Trin. 1649. B. R. Rott 849. Beal and Wymans Case Styles Rep. fol. 240. 236. A man having Lands in Fee-simple and Goods to the value of five pounds onely deviseth to his Wife all his whole Estate paying his Debts and Legacies which amounted to forty pounds in this case it was adjudged that all the lands did pass by the devise and that the Wife had a Fee-simple in the lands the word paying enforcing it for they are to be paid presently which cannot be if the land pass not in Fee Tr. 1651. B. R. Kirman and Johnsons Case Styles Rep. fol. 293. and see 29 H. 8. Bro. Testament 18. 237. A seized of three Houses and other Lands Pastures and Meadows in W in the County of H and of Land in the County of O devised in this manner viz. I give my Capital Messuage in the Counâ—y of O and all other my Lands and Meadows and Pastures in the Parish of W to such an one and adjudged here that all the houses passed by the devise for that lands comprehends houses also Ewer and Heydons Case Abr. Mores Rep. pag. 103. pl. 468. 238. If a man devise the profits of his lands it is a devise of the lands themselves Tr. 16 Jac. C. B. Rott 465. Balder and Blackbornes Case Brownlo 1 part 79. Owens Rep. 66 Tr. 23 Car. Styles 81. 239. A man by his Will deviseth his lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of twenty one years and if the Issue die before that age or before his wife or if she hath no Issue that then she shall chuse two Attorneys and sheto make a Bill of sale of any lands to her best advantage In this case it was resolved that the wife hath those lands for life and she having no Issue hath not any interest to dispose but hath an authority to nominate two who shall dispose of the lands and they shall make sale of them Mich. 5 Jac. B. R. Beal and Shepherds case Bro. 2 part Rep. fol. 199. 240. I might go on to shew what words in a Devise make a Condition and what a Limitation and where an estate shall pass by Implication and what words make an estate Tayl Fee-simple or for Life and where the Devisees shall be Joyntenants and were Tenants in Common with several other things but it not being the intent of this Treatise I refer the Reader to the learned Reports now extant where he may be satisfied and so I return again to my purpose 141. Devises and Legacies are to be sued for in the Ecclesiastical Court but the Ordinary cannot take Cognizance of Fees or Free-hold devised but a Prohibition will lye if any Judge of any Spiritual Court shall cite one before him in case of such a devise as intrencheth upon the Common Law Perkins sect 576 579. and Dr. and Stud. li. 2. cap. 55 Cowels Inst pag. 146. 242. Note there may be much deceit used by a knavish Executor and though the Goods be of a great value after the Debts are paid which were truely owing and due by the Testator yet he may keep the Legacies and never pay them perhaps but pretend that all the Debts are not paid and thereupon may cause Strangers to sue and then alledge that there are more Suits against them then the Goods of the Testator are sufficient to satisfie or they may confess the Actions brought against them and several other ways there are whereby they may defraud the Legatees of their Legacies Therefore it were good for Testators in their life-times either to secure the Legacies to the Legatees by some sure means or otherwise in their life-time to deliver the same that they see them possessed thereof and not leave it to the Will of the Executor Perkins sect 571. CHAP. IX Several Cases concerning the Duty of an Executor 243. THere are three kinds of Executors or persons which have to deal with the Execution of dead mens Wills and disposition of their Goods The first hath his Authority from the Law and that is the Bishop or Ordinary of every Diocess who hath the execution thereof when no Executor is appointed by the Testator
Goods in his hands of the first Testators the surviving Executor may have an Action against him for the same and if the surviving Executor do afterwards dye intestate yet cannot the Executor of the Executor meddle with the Goods of the first Testator but Administration thereof is to be committed to the next of Kin to the Testator and if the Executor of the Executor or who dyed first meddle with the Goods then he may be sued by the Creditors as Executor in his own wrong Bro. Exec. 92 99 149 160. Swin part 4. sect 20. 259. If one make another his Executor and dyeth and the Executor before he hath proved the Will maketh another his Executor and dyeth in this Case Administration of the first Testators Goods with the Will annexed shall be committed to the next of Kin of the first Testator and not to the Executor of the Executor unless the first Testator did bequeath his Goods as his Debts Funeral-expences and Legacies paid to the Executor named in the Testament and then in such case the Administration of the first Testators Goods is to be committed with the Will annexed to the Executor of the Executor Dyer fol. 372. num 42. M. 23 El. Isteds Ca. Swin part 6. sect 3 260. Note that if divers be appointed Executors and one of them doth sell some of the Testators Goods for a sum of money then that Executor which sold the Goods may sue alone for the money due for the same Swin part 4. sect 20. Bro. Exec. num 65. 261. Where divers persons are made Executors and the Testator gives them power to sell his Lands in this case though some of them dye or do refuse the Executorship yet the others who take upon them the charge and burden of the same Testament and Will may sell the Lands except in some Cases Perkins sect 545. Pasch 46 E. 3. Devise 8. 21 H. 8. cap. 4. 39 〈◊〉 pl. 17. Co. on Litt. fol. 113. Swin part 6. sect 3. Dyer fol. 371. See Howel and Barnes case Mich. 10 Car. 1. Cro. 1 part 262. As where the Testator Deviseth that after his death his Lands shall be sold by his Executors with the assent of A B maketh his Wife and a Stranger his Executors and dyeth and then the Wife dyeth and A B also in this Case the Authority of selling the Lands is extinct and gone by the death of A B without whose consent it cannot be sold and therefore if the surviving Executor should sell such sale is void Brownlowes part Rep. fol. 100. Mich. 5 Eliz. Dyer fol. 219. Fulb. fol. 41. Swin part 6. sect 3. 263. But if a man Devise by his Will that A B and C D whom he makes his Executors shall sell his Land for payment of his Debts and they refuse to be Executors yet notwithstanding they may sell the Lands because they are named by their proper names or if one of the Executors dyeth and the other taketh upon him the Executorship and afterwards selleth the Lands such sale is good 15 H. 7 12. Perkins sect 548. 19 H. 8 9. Swin part 6. sect 3. 264. But where a man by his Will maketh A B C and D his Executors Devises his Lands to the said A B C and D by their special names and to their Heirs and further deviseth that the Devisee shall sell his Lands for payment of his Debts and one of the Executor refuses to intermeddle in this case it hath been held that this being a special and joynt interest the other three Executors thereupon cannot sell without their Compaâ—ion Mich. 29 Eliz. B. R. Bonnisant and Sir Rich. Greenfields case Godbolts Rep. fol. 77. And sec 26 El. B. R. Vincent and Lees case Co. on Litt. fol. 113. 265. My Lord Cooks advice is to such who devise by their Wills their Lands to be sold that they make it as certain as they can as that the sale be made by his Executors or the Survivor or Survivors of them if his meaning be so or by such or so many of them as take upon them the Probat of the VVill c. and it is better to give them an Authority then an Estate unless his meaning be they should take the profits of the Lands in the mean time and then it is necessary that he deviseth that the mean profits be assets in their hands for otherwise they shall not be Assets Co. on Liâ—t fol. 113. 266. If a man devise his lands to be sold by his Executors and to distribute the profits to Pious uses yet after the death of the Testator the Inheritance shall descend to the Heir and shall remain in him until the Executors sell the same and the Heir ought to receive the profits thereof till the time of the sale but if the Testator devise his lands to his Executors which he willeth to be sold and the money to be distributed to Pious uses here the Executors after the Testators death shall receive the Profits and not the Heir for in the first case the Executors have only an Authority to sell and in the last case they have the frank-Tenement Brownl 2 part Rep. fol. 136. Noyeâ— Max. pag. 100 101. 38. Ass Pl. 3. Perkins sect 541 and 543. Swin part 6. sect 3. num 7. Cowels Inst pag. 139. 267. Note that the Executor of an Executor cannot sell the land of the first Testator who by his Testament gave power to his Executor to sell the same but it shall go to the Heir unless the Will be otherwise Bro. Tit. Executor 3. Perkins sect 507 554. Swin part 6. sect 3. num 11. in fin 268. If a man willeth that his Executors shall joyntly sell his land or that his Executors and his Feoffees shall joyntly sell his land in such case if one Executor sell to one and the other to another or if the Executors sell to one and the Feoffees to another and afterwards they joyn in the sale to a third person in such case the last sale onely is good and the other voyd Perkins sect 546 and 553. 269. If a man willeth his lands shall be sold for the payment of his Debts and express not by whom it shall be sold then the Executors shall sell it but if he willeth his land to be sold and express not by whom nor for what in such case it hath been held that such Devise is void and the land shall not be sold but descend to the Heir Perkins sect 547. 15 H. 7. 12. 270. The Executors or Administrators of Tenants in Fee-simple Fee-Tayl and Tenants for term of life of Rent-services Rent-charges Rent-sects and Fee-farms by the Stat. of 32 H. 8. may either distrain or have an Action of Debt against such Tenant as is behind and in Arrear to the Testator at the same time of his Death for such Arrearages of Rent as ought to have been paid to the Testator in his life-time and if the Tenant who was in arrear be dead then they may
Executors part to prove that the Testator was of sound mind not onely to answer to ordinary and usual questions but that he had a disposing memory and was able to make his Devises and Bequests with understanding and reason at the time of making his Testament Franeisc Mantica de conject ult volunt l. 1. Tit. 5. Maschard de Probat verb. Furiosum Conclus 824. numb 10. Vide 41 Eliz. B. R. in Marquess de Winchester's Ca. Co. 6. Li. fo 23. Swin part 2. Sect. 3. Num. 6 7. 63. An Idiot or Natural Fool that cannot number Twenty nor tell his Age nor is able to answer to any ordinary and usual Question nor knows what is for his advantage or damage though it be notorious nor is apt to be instructed or informed by any other such an one cannot make a Testament nor may dispose either of his Lands or Goods F. N. B. de Idiota inquirendo 34 H. 8. c. 5. Cowels Inst. p. 123. Simo. de Praetis de Inter. ult volunt lib. 2. dub 1. fol. 4. Swin part 2. sect 4. num 1 2. 64. But if a man be of a mean understanding between a Wise-man and a Fool such an one may make his Testament unless he be so simple as that one may perswade him to believe things impossible as that an Ass can flie or that in old time Trees did walk and Birds speak or the like Simo. de Praetis de Inter. ult volunt lib. 2. dub 1. fo 4. Swin part 2. sect 4. num 3 4. 65. A Married woman cannot make her Testament of any Mannors Lands Tenements or Hereditaments by the Statute of 34 H. 8. neither can she make a Testament of Goods or Chattels without her Husbands license except she be a Queen or Empress or that she were Executrix to some other person for in such case she may make her Will of such Goods as she hath as Executrix without his license and name her Executor who shall have them to the use of the first Testator but she cannot give them away as a Legacie and if she die without Will yet in such case such goods as she had as Executrix of which the property is not altered shall not go to the Husband but Administration thereof shall be committed to the next of kin of the first Testator But in both these cases the Husband shall have the Profits arising of the same as Calves Lambs and such-like profit of Kine and Sheep Also if the Wife have Goods by way of Legacie from another person in such case she cannot make a Testament or dispose of the same without his license Note though the Husband do give license to the Wife to give away part of his goods yet notwithstanding he may countermand her Testament again either before or after her death or at least before the Probate thereof But if the wife make her Testament of his Goods and the Executors prove the same and the Husband delivers the Goods to the Executors then he cannot countermand the Testament though the wife made it without his license or knowledge for by this after-act the Law presumes he gave consent at the first 34 35 H. 8. c. 5. Bract. l. 2. c. 26. Bro. Devise 34. Testament 21. Executor 11. Administrator 45. Perkins num 501 502. Noys Maxims p. 97. Mich. 2 E. 2. Devise 14. F. N. B. tit Executor num 10. Swin part 2. sect 9. Plo. com fol. 525. Cowels Inst. pa. 124. 66. A Slave or Bondman cannot make a Testament or Will for that all he hath is his Lords and he can dispose of nothing Bract. l. 1. C. 9. num 3. Fleta li. 1. C. 5. sect 7. num 3. Cowels Inst. pa. 16. 67. But if a Villain make a Testament it is not absolutely void but voidable for if the Lord enter and seise the Villains Lands and Good◠before probate of the Will it make◠the Devise void or if he claim the Villain in his life-time and seize the Goods by word onely it makes the Devise void But if neither of these were done by the Lord before the Executors prove the Will and seize the Goods then the Testament of the Villain is good in law against the Lord except it be in case of the King for if his Villain give or sell his Goods the King may seize them at any time for Nullum tempus occurrig Regi Also if a Villain have Goods as Executor to another person he may make a Testament thereof and appoint an Executor to the first Testator who shall have the said Goods and not the Lord of the Villain Bro. tit Villenage 50 68 73. Dr. Stud. li. 2. C. 43. Littletons Tenures li. 2. C. 11. Swin part 2. sect 7. 68. A man that is taken captive by those who are open enemies to the King cannot make a Testament during his captivity for if he do though he should escape afterwards and then die yet such Testament is void but if he had made a Testament before he was taken and then afterwards escape or though he die during his Captivity yet in both cases the Testament is good and so it is if he be taken by those who are not proclaimed enemies and during his captivity he makes his Testament or if a man who is imprisoned for Debt do make his Testament during his imprisonment it is good unless it be made in favour of those at whose Suit he is imprisoned Mich◠Grass Thesaur com opin sect Testament Quaestio 25. Franc. Mant. d◠conject ult Volunt li. 2. tit 7. num 2. Bract. li. 2. C. 16. num 5. Swin part 2. sect 8. 69. One that is born Deaf an◠Dumb if it appear by sufficient Argument that he understands what 〈◊〉 Testament is may be signes make 〈◊〉 Testament and so may any on◠that could have spoken and hear◠formerly and is become deaf an◠dumb by some accident or if such person can write then he may writ◠his Testament with his own hand 〈◊〉 and so likewise may one do that ca◠hear but cannot speak and if h◠cannot write then he may do it by signes and tokens and one that ca◠speak but cannot hear may als◠make his Testament and devise hi◠goods to whom he pleases Refor leg Eccles tit de Testam C. 7. Swin part 2. sect 10. 70. But one that is born both deaf dumb and blinde cannot make a Testament or Will because he hath no understanding Finches law li. 2. C. 2. pa. 103. Perkins numb 25. 71. One that is blinde may make a Nuncupative Testament by declaring his Will before a sufficient number of witnesses but he cannot make his Testament in writing unless the same be read before witnesses and then acknowledged by him to be his last Will and Testament for if he should acknowledge a writing for his last Will and do not hear it read this will not make it amount to a VVill in writing Swin part 2. sect 11. num 1 2. 72.
reason of incertainty because it is a Testament ad pias causas By the Poor therefore is understood the Poor of the Parish where the Testator did dwell and keep house and the Ordinary is to take care that the Poor have their due according to the meaning of the Testator Also if the Testator bequeath any goods or money to the Parishioners of any Parish to the use of the Church such a Bequest is good and the Legacie may be recovered by the Churchwardens who albeit in every respect they be not a lawful Corporation yet in this respect in favour of the Church they are accounted a lawful Corporation And where it is said that unlawful Colledges or Companies c. not Incorporated by the Kings Authority cannot be Executors yet in such case if the several and particular persons by name of an unlawful Colledge c. be appointed Executors they are not to be repelled Franc. Mantica deconject ult Volunt li. 8. tit 5. num 2. â—iraquel tract de privileg piae causae privileg 56. Lambert Tract de Officio Gardianarum fo 43. Bro. tit Corporation num 55 73 77 84. Fulb. li. 1. fo 42 43. Swin part 7. sect 8. 100. If the Testator make his own kin his Executors in this case those of kin who are nearest to him and should have had the Administration if the Testator had died Intestate shall be first admitted and enjoy the Executorship during their lives and after their deaths then the other next of kin to the Testator is to be admitted successively one after another and not all together but if the Testator make another mans kindred his Executors in such case they are all to be admitted together to the Executorship Simo. de Praetis de interp ult Volunt li 3. fo 91. num 28. Mich. Grass thesaur com opin sect Instit quaest 20. sect Fidei commiss quaestio 16. sect Legat. quaest 41. Swin part 7. sect 8. num 10. 101. Where the Testator makes the next of his kin his Executor and dies without issue of his body in this case the father or mother if living shall have the Executorship as next of kin to their son contrary to the Judgement given in the 5 E. 6. in the Duke of Sussolk's Case which Case is now over-ruled and not held for Law Co. 3. lib. fo 40. in Ratcliff s Case there Cowels Inst p. 40. Trin. 22 Car. 1. B. R. Styles Regestum practicale p. 21. Swin part 7. sect 8. in fine 102. If the Testator say I make A or B my Executors in this case it is all one as if he had said I make A and B my Executors unless it be where the Testator bears more affection to the one then to the other and then he which he bears most affection to shall be preferred as where the Testator makes his brother or John at Style his Executors in this case the brother shall be first admitted and after his death then John at Style if he be living shall be admitted Also where one of the persons so named is incapable then the dis-junctive standeth properly and the other shall be admitted alone to the Executorship Jul. Clar. sect Testament quaest 80. num 5. Swin part 7. sect 9. 103. An Excommunicate person so long as he standeth in the Sentence of Excommunication is not to be admitted to an Executorship by the Ordinary nor can he commence any Suit there for his Legacie Michael Grass thesaur com opin sect Institutio quaestio 4. Swin part 5. sect 6. 104. Bastards begotten and born in Adultery or Incest are not capable of any benefit by the Testament or Last Will of their Incestuous or Adulterous parents except there be onely so much bequeathed as will suffice for their competent Alimentation or Relief that is to say for their Food Clothing Lodging and other meet and convenient necessaries according to the degree and ability of their parents or that it be in case of Lands Tenements and Hereditaments for there a man may by his Testament or Will in writing devise to his Bastard all his Lands Tenements or â—ereditaments and such Bastard may sue for the same and recover them and so it was adjudged in the Lady Griffins Case upon the Testament of Sir Francis Wortly who devised all his Lands to his base daughter Mich. 18 Car. 2. B. R. Mich. Gâ—â—ss thesaur com opin sect Instit quaest 7. Gabr. com Conclus li. 6. tit de Aliment conclusio 1. num 5 31. Menoch praesump li. 4. praesumptio 157. num 3. 32 H. 8. c. 1. Brac. li. 2. c. 7. Swin part 2. sect 17. part 5. sect 7. 105. Note also that these incestuous or Adulterous Bastards may be Executor to any other person saving to their natural parents and are capable of a Legacie bequeathed to them from any other person yea even to their own Incestuous or Adulterous brethren they may be Executors or receive any other Testamentary benefit from them Jul. Clar. sect Testament quaestio 31. num 4. Swin part 5. sect 7. 106. Also where they are appointed but onely bare and nude Executors and receive no benefit by the Testament in such case they be admitted Executors to their own natural parents Simoâ— de Praetiâ— de interp ult Voluntâ— li. 5. fo 17. num 27. Swin part 5. sect 7. 107. The Adulterous Grandfather may bequeath any thing to the lawful children of his own unlawful sons or daughters or make them his Executors but so cannot the Incestuous Grandfather Covar in D. cap. 8. de Sponsal part 2. sect 5. num 13. Bald. C. de Incest Swin part 5. sect 7. 108. Several other persons there are who by the Civil and Ecclesiastical Laws are prohibited Testamentary benefits but being that I finde little or no mention made of them either in our Common or Statute-Laws which limit the power of those Spiritual Courts here in England I shall therefore pass them over in silence and proceed to the next Chapter CHAP. V. Of the several ways of appointing aâ— Executor 109. TO name or to appoint one as Executor is to place one in stead of the Testator who may enter to the Testators goods and chattels and have an Action against the Testators Debtors and may dispose of the same goods and chattels towards the payment of the Testators Debts and performance of his Will which if he neglect to do he may be sued by the Creditors or Legataries so long as he hath Assetts in his hands Noys Max. p. 101. Terms of the Law verb. Executor Swin 4. sect 2. 110. Now this naming or appointing an Executor is the head of the Testament and as the body is dead that lacketh an head so the Testament is as it were dead that lacketh an Executor for it is the foundation of the Testament and no Testament can stand without it or be called a Testament and though there be never so many Legacies or Devises given therein yet it is but a Codicil or Will and not
Son or Daughter married in his life-time who hath a Child or Children and then dyes and afterwards the Grand-father dyes in this case the Grand-children shall recover such part of the Grand-fathers Goods as should have been due to their Father or Mother for their Childes Portion if they had lived Reformatio Legum Eccles tit Test cap. 10. 154. If the Father leave a Legacie to his Child being neither Heir nor advanced by him in his life-time and do not mention whether it shall be in lieu and recompence of his filial portion or no in such case if it be as much or more in quantity then the filial portion extends unto by the rate of the Inventary or if it want but a very little thereof then it shall be presumed to be given in lieu of his Portion but if the Legacie be very small then the Child shall both recover the said Legacie and his filial Portion too Menoch de Praesumpt li. 4. Praesumptio 109. num 6 26 and 110. Swin part 3. sect 18. num 9. 155. Where the Child is Heir to his Father in Fee-simple or Fee-tail though the Lands be but of very small value in regard of the personal Estate of his Father yet he is thereby barred from having any filial Portion by the custom of the Province of York and some other places yea although he be but Heir in reversion or hold Lands as Heir which are but Mortgaged with power of Redemption upon payment of such a sum of money at a certain day yet during such holding till the condition be performed he is barred of his filial portion but if he have onely copy hold-lands after his Fathers death in such case he is not barred from the recovery of his filial Portion Dyer fol. 124. pl. 38. Swinbor part 3. sect 18. and the opinions of Sir Tho. Hâ—â—sâ—oth Doctor of the Civil Law and Sir Jo. Savile one of the Barons of the Exchequer Judge of Assize at York 1604 cited by Mr. Swinborne in his Marginal Notes 156. If the Father bestow or give any thing to a man of Trade to take his Son an Apprentise and to teach him his Trade or bestow any thing upon a School-master or Tutor in the Universities of Oxford or Cambridge for the increase of his Childs knowledge in Learning or buy an Advowson or Ecclesiastical Benefice or Dignity and afterwards presents his Son to it or the Son being much indebted the Father pays off his debts or buys an Office and bestows it upon his Son or if any other but the Father bestow a preferment on his Son though it be never so much yet none of all these shall be accounted such preferment or advancement as to bar the Child from the recovery of his filial Portion Claudius Battandier Tract de Legitima cap. 12. num 19 20 21 28 22 31. Swin part 3. sect 18. 157. But it is said by some that if the Father bestow a Lease upon his Child or grant to him an Annuity for life out of his Lands and though the Child be to reap no benefit by these during his Fathers life but after his death yet it 's held for a preferment because it was assured to him in his Fathers life-time Swin part 3. sect 18. num 25. 158. And it is granted for certainty that if the Father bestow a competent portion with his Daughter in Marriage upon him that should marry her this is such an advancement as shall bar her from the demand of a filial Portion but it is to be understood that this competent Portion must be equal or not far inferiour to that quantity which should fall to be due to such a Child after the rate and proportion of the Fathers Estate at that very time when he bestowes it on his Child and not according to such quantity as should fall due at the time of the Fathers death afterwards Swin part 3. sect 18. num 22 26 27. 159. But if such gift be not competent but far under the rateable part of that which would fall due to the Child as 5 l. to put in his Purse or spend at his pleasure when perhaps the filial Portion would amount to several hundreds of pounds this is not such an advancement as shall hinder such Childe from the recovery of a filial portion Swin part 3. sect 18. num 28. 160. Or if a man seized in Fee-simple of thirty Acres of Land hath Issue two Daughters and giveth ten Acres with one of them in frank-Marriage and dyeth seized of the other twenty Acres in this case she that is married may if she will have part of those twenty Acres also and put them in hotch-potch with the other Land and suffer the same to lye commixed and mingled together and so an equal division shall be made betwixt the two Sisters and each of them shall have fifteen Acres whereas otherwise the Sister marrieâ— would get but ten Acres Litt. 59. Fynches Law pag. 124. Terms of the Law verbum hotch-potch Swin part 3. sect 18. numb 33. 161. Note that by Portion is to be understood not onely a sum of money or part of the Fathers Goods and Chattels but also Lands and Annuities bestowed by the Father upon the Childe Swin part 3. sect â—8 num 29. CHAP. VII What things are deviseable by Will and what not 162. OF Lands Tenements and Hereditaments some are deviseable by Custom and some by force of certain Statutes as hereafter appears Cowels Inst pag. 138. Swin part 3. sect 2. 163. Lands Tenements and Hereditaments holden in Gavel-kinde by the custom of Kent though they be holden in Knights service may be given or devised by Will and that without license of the Lords saving to the Lords the Rents and services due out of the same Lands and Tenements Terms of the Law verb. Gavel-kinde Mich. 1655. in B. R. Hammond and Thornhills Ca. Syles Rep. fol. 476. Swin part 3. sect 3. 164. And so Lands Tenements and Hereditaments lying in London York Oxford c. and other place where the same are held in Burgage-Tenure may be devised by Will foâ— to hold in Fee-simple Fee-tail foâ— life for years c. and if he who hold such Lands c. in Burgage-Tenure be a Citizen or Burgess of the City or Burrough where such Lands Tenements or Hereditaments be holdeâ— in Burgage-Tenure then he maâ— devise the same in Mortmain whicâ— otherwise he could not do if he werâ— not Citizen Burgess or Freeman oâ— the same place and it is not necessary that the Will wherein BurgageLand is devised should be in writing But note that the custom of the place must he observed concerning the Probate or Inrolment of such Wills c. F. N. B. Bre. ex Gravi quaerela in pr. Bro. tit devise 22 43 and 51. Dr. Stud. li. 1. cap. 7 and 10. Swin part 3. sect 3. Perkins Sec. 577 578. pag. 49. E. 3. devise 8. 165. The Wife so long as she lives unmarried shall have half
of her Husbands Lands holden in Gavelkinde Co. on Litt. fol. 111. Old Terms of the Law verb. Gavelkinde 166. And of Lands held in Burrough English by the custom of some places the Widow shall have the whole and sometimes the half of her Husbands Estate Dum sola casta vixerit Co. on Litt. fol. 111. F. N. B. 150. Litt. li. 2. cap. 10. 167. By the Stat. 32 H. 8. cap. 1. every one except a woman Covert an Insant under the age of one and twenty years or a person De non sane Memorie may be their last Will and Testament in writing or other Act lawfully executed in their life-time give dispose Will or devise all such Lands Tenements and Hereditaments as they are solely seized of in Fee-simple or as much as of right in them is of all such Lands Tenements and Hereditaments as they are seized of in Fee-simple in Copercenary or in Common in Fee-simple to any person or persons except to Bodies politick and corporate And two parts of three of all such Lands Tenements or other Hereditaments as they hold in Knights service See now the 12 Car. 2. cap. 24. 32 H. 8. cap. 1 34. and 35 H. 8. cap. 5. Fynch Law pag. 169 170. Co. on Litt. fol. 111. b. Swin part 3. sect 3 and 4. And Wingates Abr. of Stat. tit Wills 168. All manner of Goods and Chattels real and personal moveable and immoveable may be devised by Will or Testament except in some certain cases following Perkins sect 511. Lind. in C. Stat. de Testament li. 3. Provinc Const Cantibr Swin part 3. sect 5. Cowels Inst pag. 140. 169. As where two men are joyntly possessed of Goods and Chattels real or personal one of them cannot make his Will and bequeath his part to another for when he dyes his part goes to the survivor and so it is in Lands Tenements and Hereditaments also Perkins sect 500 526. Dr. Stud. li. 1. cap. 6. Litt. li. 3. cap. 3. Cowels Inst pag. 140. Clerk of Assize pag. 63. 170. Nor can a Spiritual person or Master of a Colledge or Hospital or Mayor of a City devise those things which belong to their Church Colledge Hospital or City nor can the Crown or Jewels of the Realm be devised by Will but they may be given by Letters-patents and a Parson by Will may devise the Corn growing on the Glebe-Land at the time of his death Perkins sect 496 and 497 498. Brac. 1. li. 1 2. cap. 14. Dr. Stud. li. 2. cap. 39. Cowels Inst pag. 125. F. N. B. devise 5. Exer. 108. Swin part 3. sect 6. 171. The Husband cannot devise such Goods as his Wife hath as being Executrix to another nor such things as are in Action as debts due to her before Marriage by Obligation or Contract unless he and his Wife sue and recover the same during Marriage or that he renew the Bonds and take them in his own Name otherwise after his death they remain to her Co. on Litt. fol. 351. b. 9 H. 6 52. 21 H. 7. fol. 29. Kitchin fol. 251. a. Finches Law pag. 44 168. Bro. Testam 11. Swin part 2. sect 9. num 13. 172. Also if the Husband be possessed of a Terme or Lease for years in right of his Wife he cannot devise it by his VVill but he may grant it away or dispose of it in his life-time or if he make no disposition thereof yet if he survive her then it falls to him and in such Case he may devise it by VVill. Dame Hales ca. Plo. com fol. 260. Co. on Litt. fol. 251. a. Kitchin pag. 267. b. 7 H. 6 1. Perkins sect 560. Dr. Stud. li. 1. cap. 7. 173. An Administrator cannot devise those Goods by VVill which he hath as Administrator to another person dying intestate but Administration thereof shall be committed to the next of Kin to the first Intestate neither can an Executor devise those Goods by way of Legacy which he hath as Executor but he may make his Testament and appoint another Executor who shall have the Administration of the same Goods to the use of the first Testator Fynches Law pag. 168. Bro. Adm. 7. F. N. Br. Adm. 3. 31 E. 3. cap. 11. Plo. com fol. 525 526. Swin part 3. sect 6. 174. Those things also which belong to the Heir after the Testators edath cannot be devised by VVill as Glass-windows VVainscote Tables dormant and Benches affixed thereunto or mortifed in the Earth Furnaces Coppers Leads Ovens c. set in Morter or Stone nor Trees nor Grass growing c. Bro. Exer. 65. Cowel Inst pag. 140. Co. 4. Rep. fol. 62. Swin part 3. sect 6. Noyes Max. pag. 106. 175. But Corn growing on the Land at the time of the Testators death may be devised by VVill by those who are seized in Fee-simple Fee-tail or for life and also by Tenant in Dower Tenant by the Curtesie and Tenant in Mortgage and their Tenants and he who is seized in right of his VVife although theiâ— Estates do determine before the said Corn be ripe and severed except in some special Cases Perkins sect 512 514 522. Dr. Stud. li. 1. cap. 20. 176. If a woman Tenant in Doweâ— sow her Land and afterwards marry and the Husband dyes before severance of the Corn in this Case it remains to her and he cannot devise it but if it had been sown after the Marriage he might have devised it Clerk of Assize pag. 57. Abr. Dr. Stud. li. 1. cap. 20. 177. If Tenant for life have Hops growing and dye a little before the severance of them in this Case the Executors or Administrators shall have them and not he in Reversion or Remainder for the Hops are accounted as Emblements they growing by Manurance and Industry of the Owner by the making of Hills and setting of Poles Vide Miâ—h 11 Car. 1. B. R. Latham and Attwoods Case Cro. 1 part fol. 396. 178. As Goods and Chattels may be devised as aforesaid it is now further observable what a quantity or proportion of Goods and Chattels the Testator may devise by his VVill observe therefore that if the Testator have neither VVife nor Childe at the time of his death hâ— he may then dispose and devise alâ— the cleer residue of his Goods and Chattels over and above the discharging Funeral-expences and hiâ— debts Lindwood in C. Statut. dâ— Testament li. 3. Pro. Const. Cant. verbum defunct Brac. li. 2. cap. 26. Swin part 3. sect 16. 179. But it is the custom of many places especially within the Province of York that if the Testator have a Wife or Childe at the time of hiâ— death that then he can but dispose of half of such his cleer Goods and the other half is to go to the Wife or Childe and if he have both a Wife and Childe or Children at the time of his death then the Goods are divided into three parts whereoâ— one part is to the VVife another
num 2. 21 H. 8. C. 5. Swin part 6. sect 15. 334. When the goods of the deceased exceeds five pounds and are under forty pounds then there is due to the Ordinary for the Probat two shillings and six pence and to the Scribe for Registring the same one shilling and where the goods exceed forty pounds then there is due to the Ordinary for the Probat two shillings and six pence as above said and two shillings and six pence to the Scribe for Registâ—ing of the same or the Register may refuse two shillings and six pence and take a penny for every ten lines of the Testament each line being to contain ten Inches in the length but note that in all these cases the Will must be brought to the Ordinary ready Ingrossed with wax at the same if you intend to tye him to the Fees above said Swin part 6. sect 15. Refor Legum Ecc. tit de Test C. 17. Wingates Abr. Stat. tit Prob. of Testaments num 3. 21 H. 8. cap. 5. 335. The Fees either for the copy of the Will or Inventary are the same as are allowed for Registring the Will or the Register may refuse the same and take a penny for every ten lines for the length as aforesaid The Officer that takes more then his just Fee shall forfeit that excess to the party grieved and ten pounds besides to be divided betwixt the King and the party that will sue for the same in any of the Kings Courts 336. Where by custom less hath been taken in any of the cases aforesaid there less is to be taken still notwithstanding the Act of the 21 H. 8. Wingates Abr. Stat. tit Probat of Test. num 11. Swin part 6. sect 15. num 4. 21 H. 8. cap. 5. 337. If a Testament be in Paper and the Executor desires that the same shall be transcribed and ingrossed in Parchment then he must agree with the Clerk for transcribing the same as cheap as he can and when both are brought to the Ordinary it is in his choice whether he will put his Seal and Probat to the Original or Transcript but there is nothing due to the Ordinary for the Transcript nor for examining the same with the Original but onely for affixing his Seal and Probat he shall take such Fees as is afore declared Co. 3 part Inst. fol. 149 150. chap. Extortion 338. And If any Ordinary or his Official c. exact greater Fees then these above mentioned it is Extortion and so it was adjudged by the whole Court of Common Bench Mich. 6 Jac. upon an information against one Rowse Commissary of the Arch-Deacon of Huntington at the suit of one Neal which was for taking a Fee for ingrossing the Probat upon the Transcript of the Testament over and above his lawful Fee due by the 21 H. 8. above mentioned and if this president were put into practice the Probat of Testaments and granting Administrations would not be so chargeable as in most places at this day they are Mich. 6 Jac. C. B. Rott 1301. Neal and Rowse case Co. 4. part Inst fol. 336. 339. When a Will where Lands are devised comes to be proved in the Prerogative-Court they ought onely to take a Copy thereof into their Leiger-Book and deliver the Original to the Legatee of the Lands to support his Title by if he be questioned for the same Mich. 1649. B. R. Styles Regest Practicale pag. 358. 340. If a man be long absent and it be not known whether he be alive or dead if he have made a Will it may be proved especially if it be reported that he is dead and that the party absent were sickly and a very old man when he went away or the like Mischard de probac. Conclusio 1074. num 4. Swin part 6. sect 13. 341. Note that if the party dying have at the time of his death goods or good debts in any other Diocess or Diocesses or peculiar jurisdiction within that Province besides those goods in the place where he dyes amounting to the value of five pounds at the least then the Probat of such Will or granting Administration belongs to the Arch-Bishop or Metropolitan of that Province whether it be within the Province of Canterbury or York this does not prejudice those Diocesses where by composition or custom Bona Notabilia are rated at a greater sum Book of Canons pub 1 Jac. Anno Dominâ— 1603. Can. 92 and 93. Perkins sect 489. 342. And if the Executor or Administrator cited or appearing voluntarily before the Judge appointed for Probat of Wills c. within such Diocess or peculiar Jurisdiction where the party dyed do upon his Oath affirm that the party deceased had goods or good debts to the value of five pounds aforesaid in any other Diocess or Diocesses or peculiar Jurisdiction within the said Province then is the Judge to dismiss him and admonish him to prove the said Will or require Administration of the goods in the Prerogative Court of the Arch-Bishop of the Province and afterwards to exhibit the Probat or Administration under Seal of the said Prerogative-Court before him the said Judge within forty days then next following and the said Judge so dismissing the party as aforesaid shall not exact or take any charges of the said partiâ—â—â— more then suâ—h onely as are due for the Citation and other Process had and used against such persons upon their contumacy and if any Judge or their Register shall offend herein he is to be suspended from his Office ipso facto and not to be absolved till he have paid to the party all his expences laid out contrary to the Tenor of the premises Book Can. 1 Jac. An. Dom. 1603. Can. 92 and 93. Swin part 6. sect 11. 343. Note that the probat of every Bishops Testament or granting Administration of his Goods although he have no Goods but within his own Jurisdiction where he was Bishop doth belong to the Arch-Bishop within whose Province the party deceased was Bishop Co. 4 part Inst fol. 335. 344. If any Ordinary of a Diocess or Commissary of a peculiar Jurisdiction commit Administration of his Goods that hath Bona Notabilia as aforesaid in divers Diocesses it is utterly void to all intents and purposes aswell concerning Goods in his own Diocess as elsewhere But if the Metropolitane do commit Administration supposing the party deceased to have Bona Notabilia whereas he hath but Goods only in one inferior Diocess this Administration is noâ— vâ—yd but only voydable by Sentence for that the Metropolitane hath Jurisdiction over all the Diocesses within his Province 22 El. â— â— Veer and Jefferâ—es Ca. vouched in Co. 5 li fo 30. in Princes case and Mores Rep. the same case 345. Note that in former times when Popery and Idolatry reigned in this Kingdom every Executor or Administrator was to pass his Account to the Ordinary how he had performed his Office and if any thing remained in the Executors hands after the
if he write thus I make my Wife my of this my last Will and Testament leaving out this word Executrix yet in this Case his Errour shall not hurt it for the Law doth presume more was spoken though less was written and therefore she shall be taken for Executrix Swin part 4. sect 25. numb 7. Molin in l. 1. c. de Test sect de verb ob numb 8. in fin 11. Also if there be no Witnesses of a written Testament yet if it be certain and undoubted that the Testament is written or subscribed with the Testators own hand it is sufficient but if it be doubted whether it is his hand or no then the Testimony of Witnesses is necessary to confirm the same to be the Testators own hand or where there is no suspition of fraud proof may be made and allowed by comparing of hands with other writings signed by the Testator Maschard de probat verb. Testament Conclus 1352. numb 60. Swin part 4. sect 25. numb 8. Michael Grass Thesaur com opinionum sect Inst. Q. 16. n. 6. 12. Having spoken of a written Testament we shall now shew what a Nuncupative Testament is and that is where the Testator by word of mouth before a sufficient number of Witnesses doth declare his mind and names his Executor and this Testament is of as great force and efficacy as a written Testament except where Lands Tenements and Hereditaments are devised and to the making of this Nuncupative Testament no precise form of words is required neither is it material whether the Testator speak properly or unproperly so that his meaning do appear as is shewed before It is called Nuncupative à Nuncupando id est Nominando of naming an Executor and is most commonly made when the Testator is very sick and weak and past all hope of recovery Molineus in l. 1. sect Test ordin ff de verb. ob numb 8. in fin Just Instit sect de Test. ordinandis in fine Minsing in D. sect final Swin part 1. sect 12. part 4. sect 26. Terms of the Law verb. devise Noyes Maximes pa. 96. Perkin numb 476. 13. If such a Testament be put in writing after the Testators death yet it remains a Nuncupative Testament still Noyes Maximes pa. 96. Swin part 1. sect 11. numb 2. in princ 14. A man hath that priviledge in a written Testament which he cannot have in an Nuncupative Testament for in a Nuncupative Testament he must publish declare his minde but in a written Testament he may seal up his minde and keep it secret till after his death onely it beâ—ooves him to shew the same after it is sealed up to some Witnesses and say unto them This is my last Will and Testament or Herein is contained my last Will and so let them set their hands to some part thereof or otherwise to take such special Notes and Marks thereof as that they be able to prove the Identity of the writing after the Testators death and in such Case it is good enough though none of the Witnesses were privy to the Contents thereof Paris Consil 19. vol. 3. numb 25 26. c. Maschar Tract de probat Conclus 10. 1352. numb 173. Clar. sect Test. Quest 4. numb 3. Swin part 1. sect 11. numb 6 7 8 9. Simo. de Praetis de Interpretat ult volun l. 1. f. 31. 15. As touching priviledged Testaments there are three sorts thereof viz. Testamentum Militare Testamentum inter liberos Testamentum ad pias Causas That is a Testament made by a Souldier a Testament made by a Father amongst his Children and a Testament made for good and Godly uses Some other there are also but their priviledges are but small in comparison of these Mantica de Coniâ—â—â—u 〈…〉 voluntat lib. 1. Tit. 5 〈…〉 part 1. sect 13. 16. As to the first of these it is observable among the Civilians That a Souldier in Arms and in actual service of Wars is not disabled by any of those impediments whereby others are diâ—abled to make their Testaments except in Cases of Furor or lack of Reason and for other causes also when he is disabled Jure gentium And whereas there be divers which be prohibited to be Executors or Legataries to other persons yet notwithstanding they be Executors or Legataries to a Souldier except in some few Cases And whereas also no other person can die with two Testaments yet a Souldier may and both Testaments shall be deemed good according to the will and meaning of the Testator And likewise whereas another person cannot by the Civil Law die partly Testate and partly Intestate yet a Souldier may Minsing in Tit. de Milit. Testamen Instituend in principio Fitz. Abr. Tit. Execut. num 26. Franc. Mantica de Conject ult vol. l. 6. Tit. 1. num 32. Swin part 1. sect 14. Mich. Grass The saur com opin sect Testam Quest 3. num 1. Swin part 7. sect 11. num 5. 17. As to the Second where the Father maketh his Testament and nameth his lawful and natural Children his Executors and giveth them the residue of his Goods to this kind there also belongeth several priviledges for if there be found after the Testators death two Testaments of divers Tenors and it doth not appear which is first nor which is last in this Case the Testament made in favour of the Testators Children shall be deemed the later and shall take place whereas if neither be in favour of the Children nor otherwise priviledged then both are void except it be in case of a Souldier who by the Civil Law may die with two Testaments as aforesaid Also a Testament made in favour of Children is not so easily revoked as other Testaments are for whereas in other Testaments the former is revoked by the latter and that ipso jure without any express revocation yet by the Civil Law a Testament among Children is not revoked by a latter Testament wherein strangers are preferred unless it be mentioned and revoked by express words or unless the latter Testament be made ad pias Causas or else some great Displeasure or Enmity have happened betwixt the Father and Children or some like cause have come to pass whereby it may be made appear that the Father did repent him of the making of the said Will. And lastly another priviledge belonging to this Testament is That if there be no Witnesses to prove the same yet if the Testament be found among other Writings in the Testators Chest or like place and undoubtedly appear to be written or subscribed with the Testators own hand or by him procured to be written by some other then in such Case it is good enough but this Priviledge also is allowed to all other Testaments here with us in England as is shewed before in Num. 11. See the next Chapter Num. 33 40. Clar. sect Test Quest. 100. Franc. Mantica de conject ult volunt l. 6. Tit. 2. Swin part 1. sect 14. Mich. Grass Thesaur commun opin sect Testam
He who is lawfully convicted of High-treason by Verdict Confession Outlawry or Presentment cannot make his Testament or dispose of any Goods Lands Tenements or Hereditaments nay though he have made a Testament before such conviction yet the same is void but if he afterwards obtain the Kings pardon then he may make a Testament or if he have made one before conviction then after such pardon the same becomes good again Cowels Inst. pa. 123. 5 E. 6. C. 11. Swin part 2. sect 12. 73. He who is indicted of Felony at the Kings suit and will not plead to the Indictment but stands Mute shall be pressed to death and forfeits all his Goods but not his Lands and so it is said he may in such case make his Testament of his Lands Swin part 2. sect 13. num 5. Dr. Stud. li. 2. C. 41. Pulton de pace Regis fo 216. 74. Those who are indicted and lawfully convicted of such Crimes as are Felony as Petty Treason Murder Homicide Chancemedly Burglary Robbery Theft Buggery Rape c. after their conviction can make no Testament nor dispose of any Lands Goods or Chattels of their own nay if they have made a Testament before such conviction makes it void unless they procure the Kings pardon and be restored to their first condition again but if one be attainted of Felony onely he may give away his goods by Deed of Gift or sell them before Judgment be pronounced but for Lands the Law takes notice from the time of the fact committed and comprised in the Indictment but it is otherwise in case of Goods and Chattels Mich. Grass Thesaur com opin sect Testament Quaestio 26. Dr. Stud. lib. 2. C. 41. Bro. forfeiture 5 28 65 89 103 113 117. Swin part 2. sect 13. Stamf. 192. 33 E. 3. tit 20. Perkins num 29 41. Ass pl. 31. Cowels Inst. pa. 123 124. Dalton fo 292. C. 110. Vide Co. on Lit. sect 745. Rastal Forfeiture 7. Wingate Abr. Stat. eod titulo num 5 8. Stat. de Catall is Felonum 1 R. 3. c. 3. Paseh 8 E. 4. fo 4. a. Kitchin Court-leet fo 42. a. 75. By our ancient Law an Heretick could not make a Testament after convictian of his goods and chattels and if he were delivered over to Lay-mens hands then he forfeits his Lands also But see now the Statute of 1 Eliz. c. 1. for by that Statute the 2 H. 5. c. 7. which gave Forfeiture of goods and lands in case of Heresie stands now Repealed so that we have nothing in certain now but what we receive from the Canon-law A Relapse into Heresie after Recantation is fatal Mich. Grass thesaur com opin sect Testam quaest 24. Cowels Inst p. 124. Swin part 2. sect 14. Dr. Stud. li. 2. C. 29. 2 H. 5. C. 7. 1 Eliz. C. 1. Co. 3 part Inst fo 43. C. Heresie Reformatio Leg. Ecclesiasticum tit de Test. c. 7. 76. He who hath been condemned or publickly confessed himself to be a manifest Usurer and publickly uses the same Trade and hath exacted above Ten pounds in the Hundred for the loan or forbearance of an Hundred pounds for one year cannot make a Testament of his Goods and Chattels unless he satisfie or make restitution for the same in his life-time or enter caution for satisfaction to be made after his death Menoch de Arbit Judic li. 2. casus 235. Swin part 2 sect 16. Fleta li. 2. C. 50. Cowels Inst pa. 124. Mich. Grass thesaur com opin sect Testament quaest 33. 13 Eliz. c. 8. Refor Leg. Eccles tit de Testamentis c. 7. 77. If one make a Testament of his goods or cattel and afterwards wittingly and willingly kill or hang himself then such Testament is void for his goods and chattels real and personal are all forfeited to the King and all debts due to him by Specialty but no debts due to him without Specialty or upon Simple contract Stamf. pl Coronae li. 1. c. 3. Bract. li. 3 c. 2. Cowels Inst pa. 124. Swin part 2 sect 20. Co. 3 part Instit fo 54. 3 E. 3 Coron 301. 8 E. 2. Coron 420. Pasch 8 E. 4. fo 4. a. Dyer fo 262. Daltons Just fo 236. c. 92. 78. If one who is Outlawed in a Personal Action make his Testament of his goods and the Executors prove the Testament and afterwards sue the Debtors of the Testator who plead Outlawry in the Testator as a Bar this hath been held as no good Bar so that before seisure they may sue but if the King seize the goods as forfeited though he give them back again to the Executors yet they shall not be Assetts in their hands to charge them with any debts or Legacies of the Testators Trin. 37 Eliz. C. B. Rot. 1306 Woolly and Bradwels case Brownlows 1 part Rep. fo 55. Mich. 20 Jac. C. B. Bullen and Gervise case Huttons Rep. fol. 53. Dr. Stud. li. 1. c. 6. 79. He who is so excessively overcome with drink as that he is utterly deprived of the use of Reason and Understanding at such time cannot make a Testament but if he be not clean spent albeit his Understanding be a little darkned and obscured and his Memory troubled yet he may make his Testament in that case Simo. de Praetis de Inter. ult Voluntat li. 2. dubium 1. solut 4. num 22. Swin part 2. sect 6. 80. Archbishops Bishops Deans Archdeacons Prebendaries Parsons Vicars and other Ecclesiastical Ministers or Clergie-men may make their Testaments of all such goods and chattels as they severally enjoy in their own right and not in the right of their Churches and Ecclesiastical Livings Perkins num 496 497 498 28 H. 8. c. 11. Mich. Grass thesaur com opin sect Testament quaestio 34. Cowels Inst pa. 125. Swin part 2. sect 26. Dr. Stud. li. 2. c. 39. 81. The King however in a capacity to make a Will cannot make a Testament and thereby give away his Kingdom and Crown-Jewels or Regalia from his lawful Heirs to another Fitz. Abr. Devise 5. Ex. 108 Cowels Inst pa. 125. Swin part 2. sect 27. 82. The Queen of England is an exempt person from the King and may make a Testament and is of ability and capacity to grant and to take to sue and be sued as a feme sole by the Common Law Co. on Lit. fo 134. sect 200. Finches law li. 2. c. 1. p. 86. Co. 4 lib. fo 23. in Clark and Pennyâ—â—â—hers Case 83. When one is grown so old as that he is become a Childe again in his understanding and is deprived not onely of Reason but also of Sense almost or grown so forgetful through Age or other infirmity that he hath forgotten his own Name such person can no more make a Testament then a Childe Fran. Mantica de conject ult Volunt l. 2. tit 15. num 16. Simo. de Praetis de interp ult Volunt li. 2. dub 1. sol 4. num 22. Swin part 2. sect 5. 84.
Swin part 3. sect 9 Vide Co. 3. li fol. 38. Cowels Inst pa. 30 41. Noyes Maximes pa. 105. 146. Now as to the appointing oâ— Tutors it matters not by what form of words they are appointed so that the Testators meaning can but appear nor in what Language the Tutor is assigned whether in English Latine Greek or any other Tongue Swin part 3. sect 12. Socin Jun. Consil 83. Vol. 1. 147. It was the custom of many places formerly that a Boy after he had accomplished the age of fourteen years and a Girl after she had accomplished the age of twelve years might then chuse their own Tutors if they pleased and refuse the Tutors appointed them by their Fathers Will but now by the Statute of 12 Car. 2. cap. 24. every Father whether he be of the age of twenty one years or under may by Deed executed in his life-time or by his last Will and Testament in Writing delivered in the presence of two or more credible Witnesses dispose of his Children under the age of twenty one years and not married at the time of his death for and during such time as they shall remain under the age of twenty one years or any lesser time to the custody and tuition of any person or persons in possession or remainder Popish Recusants excepted and such dispossession of such Children since the 24 of Febr. 1645 or hereafter to be made shall be good against all and every person and persons claiming any such Childe or Children as Guardian in Soccage or otherwise Litt. li. 2. cap. 5. Swin part 3. sect 11. Vide Noyes Max. pag. 105. Cowels Inst pag. 33. 12 Car. 2. cap. 24. 148. And such person to whom such Children shall be disposed or devised may have an Action of Ravishment of Ward or Trespass against such person as shall wrongfully take away or detain such Child or Children for the recovery of them and recover damages for the same in such Actions for the use of such Child or Children and they are also impowred by the same Act of Parliament to take into their custody to the use of such Child or Children the profits of all the Lands Tenements and Hereditaments of such Child or Children and the custody and management of their Goods Chattels and personal Estate until the age of twenty one years or lesser time according to the Parents disposition and may bring an Action in pursuance thereof as by the Law Guardian in Soccage might do 12 Car. 2. cap. 24. 149. Note that every Tutor ought to take care that his Pupil be honestly and vertuously brought up and must provide for him Meat Drink Apparel Lodging and other necessaries according to his quality and condition and ought to dispose of his Pupils Goods and Chattels to the Pupils best advantage in selling of such Goods as will not keep without damage and preserving of the rest till the Pupil come of age And to this intent it is the custom in many places especially within the Province of York that the Tutor at the Entry of his Office makes a true Inventary of all the Goods and Chattels of his Pupils and doth enter into Bond with Sureties before the Ordinary to make a just accompt and then he is admitted and confirmed and may seize upon the body of the Pupil and take possession of his Goods Bro. tit Guardian F. N. B. fol. 118. b. Swin part 3. sect 13. and Cowels Inst pag. 49. 150. Formerly there were several Ages to be taken notice of both in Boys and Girls when they should be out of Tutorship as if a Boy were in Ward by reason of Lands held in Knights service he could not be out of Wardship till twenty one years of Age but in other cases at fourteen years of Age he might chuse a new Tutor if he liked not his old and might call his old Tutor then to accompt and so a Wench at twelve years of age might chuse her Tutor unless she were in Ward by reason of Lands held in Knights service as aforesaid and then she was to continue in Wardship till sixteen years of age unless she were fourteen at the death of her Ancestor and then she was free and might chuse her Tutor but now these Wardships are quite taken away by the 12 Car. 2. and every one may dispose of his Children to whom he pleaseth observing the Rules aforesaid in number 147. Litt. li. 2. cap. 4. Brac. li. 2. cap. 37. num 3. Bro. tit Guard 7. 35 H. 6. fol. 52. Co. Litt. fol. 78. Fleta li. 1. cap. 12. West 1. cap. 22. Mert. cap. 6. Co. 2 part Inst fol 90 and 203 135 136. Stat. Marlbr cap. 17. Cowels Inst pag. 37 and 45. Swin part 3. sect 14. F. N. B. 143. 151. Note that there is a general custom within the Province of York and in several other places that there is due to the lawful Children of every man being an inhabitant or housholder within the same Province and dying there or elsewhere a filial or Childes part and portion which is sometimes a third part and sometimes an half part of the Fathers cleer moveable Goods as hath been aforeshewed unless the Child be heir to his Father or were advanced by him in his life-time upon which exceptions hereafter follow several observations Lindwood in C. Stat. de Testament li. 3. Provinc Constit Cant. Brac. lib. 2. c. 26. F. M. B. de Rat. part honor Swin part 3. sect 18. 152. As if the Father should by his last Will and Testament forbid his Child to have any portion of his Goods such Will in such Cases is void and the Child may notwithstanding recover his filial part or portion also if the Father should leâ—ve his Child but twenty pounds when by the rate of the Inventary his part comes to an hundred pounds here he may refuse the Legacie and recover his full portion notwithstanding the Will or if the Father should impose any condition upon the said portion as to be paid seven years after his death or the like yet the Child may sue for it presently after his Fathers death and recover it before the seven years be out for it is presently due upon the Fathers death notwithstanding his Fathers Will to the contrary and if the Father by his Will should bequeath the Portion after the Childs death to any other person in such case the Will is void and the Portion shall go to the Executors or Administrators of the Child after his death But I suppose it the Father leave the Child a far greater sum then by the rate of the 〈◊〉 Inventary the Childes part would come unto in this case the Father may impose what condition he pleaseth upon it and the Child must either take it with the condition annexed or otherwise he may refuse it and stand to his Childs part without condition annexed to it Swin part 3. sect 18. num 4 5 6 7 8. 153. Also if a man have a
Assize 16 Car. 1. â—pud Ebor. Smiths ca. Claytons Rep. pag. 85. pl. 141. 285. An Executor is not chargeable with a collateral promise made by the Testator unless there were a breach of it in the Testators life-time M. 1649. Christopher and Howes case Styles Rep. fol. 141. And Pasâ— 1650. B. R. Styles Regest Practicale pag. 121. 286 If the Creditor make his Debtor his Executor in this Case the Debtor proving the Will the Debt is thereby extinguished or if the Creditor make his Debtor and another Executors here though the Debtor dye before he Administer as Executor the other Executor who was not indebted surviving yet in this Case the surviving Executor shall not have an Action for the same Debt against the Executor of his Co-executor for that the Action was extinguished by constituting him Executor Actio semel extincta nunquam reviviscit Quaere Bro. Testam 118. Plo. com fol. 184. Cowels Inst pag. 207. But see M. 31 Eliz. in B. R. Crosman and Reads case to the contrary Leonards Rep fol. 320. 287. Also if two be bound in a Bond to one in a certain sum of money and the Obligee makes one of the Obligors his Executor this is said to be a Release in Law of the Bond and Debt for the Action is suspended and a personal Action once suspended is thereby extinct Hil. 11 Jac. C. B. Fryer and Gildridge ca. Hob. Rep. fol. 10. 288. If a Debtor makes his Creditor and another Executors the Creditor if he not prove the Will nor administer may have an Action against him that doth prove the Will for his Debt and then afterwards he may Administer and take the Executorship upon him when he pleases but if he take it upon him before he sue for his Debt his Action will be thereby extinguished 289. If the Executor by the Will be to pay money and no place is appointed the parties in this case to whom it is to be paid must make Request to the Executor to pay it for the Executor in such case is not bound to seek the parties all over England as it is in the case of a Bond where no place of payment is appointed Brownl 1 part Rep. fol. 46. 290. If one be bound in an Obligation with Condition to pay twenty pounds to such person as the Obligeâ— shall name and appoint by his last Will and Testament and the Obligee afterwards makes his Will and nominates none to whom the twenty pounds shall be paid in this case the Executor named in the Testament may sue and recover the money M. 11 Jac. C. B. Rott 945. Pease and Stilman against Mead. Brownlo 1 part Rep. fol. 77. 291. As to the payment of Debts by the Executor he must have a care to pay them according to these following rules otherwise it may be he shall be forced to pay some of the Testators Debts out of his own proper goods if there be not sufficient goods of the Testators to pay all the Debts therefore observe what follows 292. First Funeral-expences then Debts to the Kings Majesty then Judgments must be payd after them Statutes-Merchant and Recognizances then Obligations and if there be divers Obligations he may pay which of them he pleases first unless the day of payment in one Obligation be past and the day of payment in the other Obligation not come for then that is to be paid first where the day of payment is past or unless one Obligation be put in suit and the other not for then that in suit must be first payd and if there be two Obligations put in suit by two Creditors a-against the Executor then he which first gets Judgment must first be paid and in this case the Executor if he will may suffer Judgment in that which was last put in suit and so pay him off first then after these Obligations simple Bills are to be payd then Rents in arrear by the Testator then Servants and Head-Workmens Wages then Merchants Books and lastly Contracts by word in which the Testator could not wage his Law upon which the Executor may be sued in an Action upon the Case upon the promise of the Testator Bro. Exec. 172. Dr. and Stud. Li. 2. C. 10. Dyer fol. 32. Mag. Charta C. 18. Co. 2 part Inst fol. 32. Cowels Inst pag. 150 151. Herns Law con pag. 87. Noyeâ— Max. pag. 104. Co. 3 part Inst fol. 202. Swin part 6. sect 16. See M. 3â— El. C. B. Pemberton and Barhams case and 43 El. B. R. Bearblock and Reads ca. vouched in the Sadlers case Co. 4 lib. and Harrisons case 40 El. C. B. Co. 5 lib. fol. 28. Terms of the Law ver Executor Bro. Exer. 33 87 127 163. Mich. 9 Jac. C B. Puncheon and Legatos case Brown 2 part Rep. fol 137. and Co. 9. lib. fol. 86. the same case M. 42. 43 El. B. R. Littleton and Hebbens Ca. Cro. 1 part Rep. fol. 293. The Executor is not chargeable for a Trespass done by the Testator nor for his receit for Rents nor for occupation of Lands as Bayliff or Guardian in Soccage for this is no duty certain Noys Max. pag. 103. 294. If Executors or Administrators have not Assets in their hands to pay all the Creditors according to these former Rules then they must pay in order as far as the Goods and Chattels of the Testator will extend and the rest are without remedy but if they pay Debts to others before Debts to the King or Bonds before Judgments or Shop-Books before Bonds c. then they must pay the same over again if there be not sufficient left to pay them who ought to have been paid according to the same order and were omitted Hernes Law Conv. pag. 87. 295. If the Testator were indebted to the Executor he may allow his own Debt before he pay other Creditors to whom the Testator was indebted in the like manner as he was to the Executor be it by Statute Bond or otherwise in case he have made an Inventary and that he be not Executor of his own wrong for every Creditor by such means when the Goods be not sufficient to pay all would strive to make himself Executor of his own wrong to satisfie himself and bar others an Administrator also may stop his own Debt Plo. com in Woodward and Darcyes case M. 40. 41 El. B. R. Coulters case Co. 5 li. fol. 30. Ma. 6 Jac. C. B. Alexander and Lambs case Brown 1 part Rep. fol. 103. Swin part 6. sect 16. Plo. com fol. 184. 296. If the Testator be indebted to one in forty pounds and the Executor pays but twenty pounds and gets an Acquittance for the whole forty pounds yet this Acquittance shall not prejudice any other Creditor but for twenty pounds onely and the other twenty pounds shall be assets in the Executors hands still 8 Jac. C. B. Turners ca. Co. 8 li. fol. 132. Bro. Exec. 6. Swin part 6. sect 16. 297. If a man Devise his Lands for three
goods come to the hands of the Ordinary he is not chargeable by the Law but if any come to his hands and possession and he will neither Administer and pay the Debts and Duties himself nor commit Administration to the Friends and Kin of the Intestate that would then he is chargeable by the Law for so much as comes to his hands and is lyable to the same Actions as other Administrators are But the Ordinary cannot have an Action of Debt Covenant nor any other Action which belonged to the Intestate but he to whom he commits Administration may so that he is subject to the charge and trouble of an Administrator but is excluded from the priviledges belonging to an Administrator 7 H. 4. fol. 18. F. N. B. 92. a. Co. 2 part Inst fol. 398. West 2. C. 19. Fynches Law pag. 174. 388. If an Action of Debt be brought against the Ordinary for a Debt of the Intestates after notice given him of the same he may not Administer to others if he have not sufficient to satisfie that debt M. 7 El. Dyer fol. 233. 389. If the Ordinary take goods of the Intestates into his hands and after commits Administration and notwithstanding still retains the goods in this case he shall be charged still as if he had not at all committed any Administration 11 R. 2. Admin 21. Co. 2 part Inst fol. 398. 390. Where the Ordinary doth take goods of the Intestates being out of his Diocess here he shall not be charged as Ordinary but as Executor in his own wrong 12 R. 2. Admin 21. Co. 2 part Inst fol. 398. 391 If the goods of the Intestates come to the hands of the Ordinary and he dyeth his Executors or Administrators shall be charged in an Action of Debt by the Stat. Westmin 2. C. 19. Westmin 2. c. 19. Co. 2 part Inst fol. 398. Regist fol. 141. 11 E. 3. Exec. 177. 392. Having spoken before concerning a Codicil I thought good here to insert the usual form thereof as followeth viz. 393. Be it known unto all men by these presents That whereas I Henry Walker of R. c. have made and declared my last Will and Testament in writing bearing date c. I the â—aid Henry Walker by this present Codicil do confirm and ratiâ—ie my said last Will and Testament and do give and bequeath unto Roger Myton of Lympton my best Suit of Clothes and my Will and meaning is that this Codicil or Schedule be and be adjudged to be part and parcel of my said last Will and Testament and that all things herein contained and mentioned be faithfully and truly performed and as fully and amply in every respect as if the same were so declared and set down in my said last Will and Testament In Witness whereof I the said Henry Walker have hereunto set my Hand and Seal this 25th day of July in the 19th year of the Reign of our most gracious Soverain Lord King Charles the Second and in the year of our Lord God 1667. FINIS The Table A ADministration how and to whom it must be granted Sect. 354 355 356 357 358 359 360 370 371 382. What Actions â—ye for or against an Administrator Sect. 374 375 376 379. Administration during Minority of an Executor when it shall cease Sect. 274 276 277. The Power and Authority of such an Administrator Sect. 275. What shall be Assets in the hands of an Executor or Administrator and what not Sect. 252 281 282 284 285 296 297 298 299 300 378 380. How and before whom the Executor or Administrator is to pass his Account Sect. 345 346 347 383 384. Appeals when how and before whom to be made Sect. 361 362 363 364 365 366 367 368 369. B. BOna Notabilia what they are and what to be done in such case Sect. 341 342 344. Bona Peraphernalia what is meant thereby Sect. 315 316. C. COdicil what it is Sect. 22 23 24 25 50. The form thereof Sect. 393. Conditions how many sorts thereof Sect. 117. When they must be performed by an Executor or Legatary and when not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. D. WHat things are deviseable by Will and what not Sect. 162 163 164 165 166 167 168 169 170 172 173 174 175 176 177 318. What passes by a Devise of Omnia bona Sect. 191 192. What passes by a Devise of Omnia Cattalla Sect. 193 194 195. What passes by a Devise of moveable Goods Sect. 197. What passes by a Devise of immoveable Goods Sect. 198. What passes by a Devise of all Houshold-stuff Sect 199 200. What passes by a Devise of all Lands and Tenements Sect. 225 226 230. What words in a Devise of Lands make a Fee simple what a Fee-tail what an Estate for life c. Sect. 227 228 229 231 232 233 234 235 236 237 238 239. E HOw many kindes of Executors Sect. 243 244 245. What time the Executor is to have to accept or refuse the Office Sect. 311. In what things the Office of an Executor doth consist Sect. 248 312 321. When an Executor shall be compelled to stand to the Office and when not Sect. 249 250 256 257 305 306. Where divers are Executors when the Action must â—e in all their names and when not Sect. 253 255 260. Who may be an Executor and who not Sect. 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106. The several ways of appointing an Executor Sect. 112 113 114 115 116. An Executor conditionally appointed when he must perform it before he can be admitted to the Office and when not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. What Actions lye for Executors and what against them Sect. 271 272 273 286 293 301. What Acts of an Infant-Executor do binde him and what not Sect. 278. When Executors may refuse the Office and afterwards accept of it and when not Sect. 254 256 257 258 259. VVhat Acts shall make a man Excutor in his own wrong Sect. 308 310. Executor in his own wrong how far he is chargeable Sect. 307. After what order Executors are to pay debts Sect. 292 294 29â— VVhen Execution shall be of the Executors own Goods and when not Sect. 302 303 304. VVhen a Debt shall be extinguished and when not Sect. 286 287 288 377. F. WHat Fees are legally due for Probat of Testaments and granting Administrations Sect. 332 333 334 335 336 337 338. I. WIthin what time the Inventary of the deceaseds goods is to be exhibited Sect. 313. The form and manner of making an Inventary Sect. 314. VVhat goods are put into the Inventary and what not Sect. 315 317. The benefit of an Inventary Sect. 319. L. AFter how many several ways a Legacie may be given Sect. 182 183 184 185. VVhere a Legacie must be sued for Sect. 187 188 189 241. A Legacie conditionally given in what cases the Legatary must perform the Condition before he can obtain the Legacie and in what Cases he need not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. VVhen the Legatary may enter and take his Legacie without leave of the Executor and when not Sect. 186 196. How and after what manner Legacies are to be paid when the Legatary shall recover the whole and when but a part of the Legacie Sect. 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219. VVhen the Legatary shall have the Election or choice of the Legacie and when the Executor shall have it Sect. 220 221 222. In what Cases a Legatary forfeits his Legacie and what not Sect. 223 224. Lands left to be sold by the Executors in what cases they must joyn in the sale and in what cases they need not Sect. 261 262 263 264 265 266 267 268 269 270. M. MOrtuaries where duâ— and what to be paid for the same Sect. 348 349 350 351 352. O. ORdinary who and what he is Sect. 353. VVhat Interest he hath in the Intestates goods that come to his hands Sect. 385 386. What Actions lye for or against the Ordinary Sect. 387 388 389 390. P. THe custom of the Province of York concerning Childrens Portions Sect. 151 152 153 154 155 156 157 158 159 160 178 179 180 181. What is meant by the word Portion Sect. 161. Probat of Testaments before whom they must be Sect. 321 322 323 324 342. How many ways Testaments may be proved Sect. 325 326 327 328 339. T. TEstament the derivation thereof Sect. 1. It s difference from a last Will. Sect. 2 110 111. The several kinds and forms of Testaments Sect. 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20. Who may make a Testament or Will and who not Sect. 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85. VVho may be Tutor or Guardian and who not Sect. 144 145. How and by whom a Tutor may be appointed Sect. 146 147 148 150. Their Office Sect. 149. W. WHat shall be a good VVill and what not Sect. 31 32 33 34 35 36 39 40 41 42 43 44 45 46 47 48 49 51 53 54 55 56. VVat shall be a good VVill to pass Lands and Tenements Sect. 6 37 38 52. The difference between a Testament and a VVill. Sect. 2. The definition of a last Will. Sect. 21. VVhat number of VVitnesses required for proof of a last VVill or Testament Sect. 26 29. VVhat VVitnesses may be excepted against in such a case and what not Sect. 27 28 30. FINIS
years to his Executors for the payment of his Debts this shall be assets in the Executors hands but if a man Devise his Lands to be sold for the payment of his Debts it is no assets till it be sold unless he express it to be so in his Will Pasc 9 Jac. C. B. Brownl 1 part Rep. fol. 34. Hil. 10 Jac. C. B. Brownl 2 part fol. 47. 298. If a man make a Lease for years of a House c. reserving Rent and the Executors after the Testators death receives the Rent yet it is no assets in their hands for the whole Rent belongs to the Heir 20 El Dyer fol. 362. Plo. com fol. 114 and 259. 299. If an Executor or Administrator make gain of the Testators Money that gain shall be assets in his hands Brownlowes 1 part Rep. fol. 77. 300. If an Executor pay Funeral-expences or Debts of the Testators with his own Money he may retain goods of the Testators to the same value and they shall not charge him as assets in his hands Cleydon and Spencers ca. Mores Rep. fol. pl. 3. Hernes Law Con. pag. 88. Noyes Max. pag. 104. Swin part 6. sect 16. Dyer fol. 2. and fol. 187. 301. Note where it is said before pl. 284. that an Action lies against an Executor upon his promise to pay a Debt of the Testators yet there ought to be a good consideration to ground the Assumpsit upon which must be either an advantage to the Executor or a damage to the Creditor as forbearance till such a time c. or else the Action will not hold M. 2 Jac. B. R. Fisher and Richardsons case Cr. 2 part Rep. fol. 47. P. 10 Jac. B. R. Booth and Cromptonâ— case Cro. 2 part fol. 613. and H. 16. Jac. Bogge and Melins case Huttons Rep. fol. 27. 302. If Judgment be given against Executors and upon a fieri facias the Sheriff returns Nulla bona in such case the plaintiff may have another special Writ of fieri facias directed to the Sheriff that he levy the Debt of the Testators goods and if it appear to him that the Executors have wasted the goods then that he levy the same of the Executors own proper goods H. 45 El. B. Râ— Pettisers case Co. 5 lib. Rep fol. 32. and Tr. 16 Car. 1. B. R. King and Hiltons case Cr. 1 part Rep. fol. 438. 303. A man was bound in an Obligation with condition for the performance of Covenants and dyes after whose death his Executors break Covenants and the Bond being sued it was moved that Execution might be of the Executors own goods because the breach of the Condition was the Executors own Act. But the Court denied it and Judgement was entred debonis Testatoris Tr. 17 Jac. C. 〈◊〉 Rott 1849. Castilion and Exec. of Smiths case Hobarts Rep. fol. 283. 304. If an Executor or Administrator be sued for a Debt of the Testators and he knoweth of a Judgment or other Debt upon Record against the Testator if the Executor have no more goods then will satisfie the same then he may well plead this special matter and it shall bar the party that sues for it shall be taken for a plâ—ne Administravit and if the Executor should pay the party that sues before the Judgment it will be a Devastavit and he will be forced then to pay the Judgment out of his own proper goods as is shewed before pl. 292. Hil. 7 Ed. 6. Dyer fol. 79. P. 12 Jac. C. B. Moon and Andrewes ca. Hobart Rep. fol. 133. Tr. 15 Jac. C. B. Rot. 2119. Kydd and Chynelyes case Hobarts Rep. fol. 218. Scarles case in Mores Abr. p. 191. pl. 877. and Barracloughs c. Clayt Rep. 65. pl. 112. 305. If an Executor be not minded to take upon him the Office of Executor then it behooves him not to meddle with any of the Testators Goods for if he once Administer of the Goods of the deceased and make use of them by selling the Goods or killing any of the Cattle or if he pay any of the Testators Debts or receive any Debts due to the Testator and give Acquittances for the same with other like acts in such Case he shall be said to Administer as Executor and may be compelled to stand to the Executorship Hil. 8 Jac. C. B. in Wickenden and Thomas case Brownlowes 2 part Rep. fol. 58. Bro. Ex. 49. Fitz. Exec. 38. Stokes and Porters ca. Mores Rep. fol. Noys Max. p. 102. Tr. 13 Eliz. C. B. Hawkins and Laws ca. Leon. Rep. fol. 155. Swin part 6. sect 22. Porters case Dyer fol. 166. 306. If a Stranger who is neither Executor nor Administrator enter upon the Goods as aforesaid this shall charge him as Executor of his own wrong and he may be sued by the Creditors of the person deceased but after the Will is proved or Administration granted and they have intermeddled with the Goods then the Stranger cannot be sued because there is another Executor of right against whom the Creditor may bring his Action and is chargeable as far as those Goods will extend which are come to his hands after he hath assumed upon him the charge of the Executorship but notwithstanding all this that there be an Executor which doth Administer yeâ— if the Stranger will still take the Goods and claim to be Executor and pay Debts or Legacies or receive Debts in such case it is said he may be charged as Executor in his own wrong although there be another Executor of right Quia os suuâ— contra se aperuit nam expressa nocent quae tacita non nocent 2 Jaâ— C. B. Reads case Co. 5 li. fol. 33 34. Swin part 6. sect 22. M. 3 Car. â— Whitmore and Porters case Cro. 1 part Rep. fol. Vide â—r 12 Jac. C. B. Rott 4087. Keeble and Osbastons case Hobarts Rep. fol. 49. And Chandler and Thompsons case 262. Bro. 2 part Rep. fol. 185. 307. Note that an Executor of his own wrong is chargeable no further then the value of the Goods which come to his hands and with which he hath intermedled Brownlowes 2 part Rep. fol. 185. Mich. 23 Car. 1. B. R. Styles Repracticale pag. 120. 308. If a man do onely perform deeds of Charity as to feed the Cattle of the deceased lest they should perish or take into his custody the Goods lest they should be stoln or dispose of the Goods about the Funeral of the Testator these acts do not charge a man as Executor of his own wrong Frane Mantica de conject ult Volunt li. 12. tit 9. num 18. Fitz. Exec. num 38 45. Bro. Admin num 6 28. Swin part 6. sect 22. Brownlowes Rep. 2 part fol. 184. Hil. 1 El. C. B. Dyer fol. 166. Noyes Max. pag. 102. 309. Where servants after the death of their Lords or Masters do imbezil their Goods after full infortion thereof made to the Lord Chancellor by the Executors or two of them of such spoil made the said Lord Chancellor by advice of