him in service till a fit time of providing him a new Master and fit for him not to depart suddenly Now for things personall without life These are evident viz. all Householdstuffe Implements and Vtensills Money Plate Jewells Corne Pulse Hay Wood felled and severed from the ground Wares Marchandise Carts Plowes Coaches Saddles and such like moveable things More doubtfull Cases touching things personall FIrst touching things living If the Testator had any tame Pigeons or Deere or Conies or Fesants or Partridges these all aswell as Chickens shall goe to the Executors so though not tame if they were taken and kept alive in any Roome Cage or like Receptacle as Fesants and Partridges often be so fish in a Trunke as also young Pigeons though not tame being in the Dovehouse not able to flie out yet their Dammes the old ones shall goe to the Heire with the Dovehouse And if the Testator had any reclaimed Hawkes they also as Chattells Personall shall goe to the Executor because they are things commonly vendible And whereas Hounds Greyhounds and Spaniells be not so commonly bought and sold nor so anciently have beene yet are they now growne to be a Marchandize and why not for although they be for the most part but things of pleasure that hindereth not but they may be valuable as well as Instruments of Musicke both tending to delight and exhilarate the spirits A cry of Hounds hath to my sense more spirit and vivacity than any other Musicke Adde hereto that there may be some profit and advantage gotten by them both quoad adeptionem boni ademptionem mali the getting of some good food and the preserving of others as Lambes Conies Fish Pultry by killing Foxes wilde Cats and others which destroy them And wee know that money is recoverable in dammages for taking away such or a Mastiffe serving to keepe an house So of Ferrets to catch Conies c. Therefore they are valuable But it may perhaps be objected that none of these above are Cattell and therefore not replevisable consequently no property in them for when more then one living Chattell is distrained the replevin is to be by the name of Averia signifying Cattell For answer not to insist that one may have property in divers things whereof no Replevin lyeth as Corne or Hay not in Sackes nor Cartes money not shut in bagge nor box c. I further say that even the word Averia may be applyed to these for so I find it to Hens and Capons in the Booke of Entries viz. in the writ of Curia Claudenda where the Plaintiffe complaines of the Defendants not making his Mounds per quod averiaipsius A. viz. Capones galinae alia Averia ipsius A. that is whereby his Cattell viz. Capons and Hennes and other his Cattels came into the Plaintiffes House and Garden to his dammage c. And both Newport and Newdigate hold that a writ of replevin lyeth of such things though Brudenell were of contrary opinion yet he also held an action of Trespasse maintainable for taking of them and therefore admitted a valuable property in them Now come we to things without life and first to those abroad in the Fields Put the case that a man dyes in Iuly before Harvest I meane seised for life or in Fee or Taile in his owne right or his Wives or estated for yeares of Land in the right of his Wife being sowne with Corne or any manner of Graine the common saying is Quicquid plantatur solo solo cedit yet this shall goe to the Executor of the Husband and not to the Wife or Heire who shall have the Land but Hay growing viz. Grasse ready to be cut Apples Peares and other fruite upon the Trees shall goe to the Wife as also if they had beene upon a mans owne Land of Inheritance they should goe to the Heire though the Corne should goe to the Executor The reason of difference is because this later comes not meerely from the soile without the industry and manurance of man as the other doe and I take Hoppes though not sowne if planted and Saffron and Hempe because sowne to pertaine as Corne to the Executor All those yet shall passe to one to whom the Land is sold or conveyed if not excepted though never so neere reaping felling or gathering But what if the Wife had the Lease for yeares as Executor to some former Husband or other friend and the Husband after sowing dyes who then shall have the Corne Certainely the Corne shall goe to the Executor of the last Husband at least so much as is more then the yeares value of the Land or the making it up by addition of other things for the value is to be assetts for payment of debts and Legacies Put the case againe that the Husband and Wife were joynt-joynt-tenants of the Land and then the very Corne growing shall survive to her together with the Land and though the Husband sowed it yet shall it not goe to his Executor Being in consideration of things growing on the ground let us not forget to thinke of Trees sold by I. S. seised of the Inheritance of the Land to I. D. who dyeth before felling this Interest is a Chattell which shall goe to the Executor and not to the Heire of I. D. but some colour may be that these because fixed to the soyle and Freehold are reall Chattells as the Interest in Land is and not personall So also of Trees Excepted by him who selleth the Inheritance of the Land but in both cases I conceive this interest to be personall and not reall for that as it is a propriety of Chattell in the Vendee or Vendor with exception it stands in consideration severed and abstracted from the soyle or ground where the Trees grow though the Trees be not actually severed by the Axe from their mother Earth But if the Lessor for yeares or life except the Trees these continue parcell of the Freehold and Inheritance And after Corne reaped and before the Tithe set out the Inheritor of the Tithe dying I thinke the Executor and not the Heire shall have the Tithe after set out Now Let us come home to the Testators house and see in and about it some doubts what pertaines to the Heire and what to the Executor Question hath beene both of old and of late touching Coppers Leads Furnaces Fat 's for Dyers or Brewers Pales Rayles Glasse in Windowes Tables Dormants Wainscotes Doores Lockes Keyes and such like to whom these should goe whether to the Heire or Executors And in the latter end of Henry the 7. his time an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall the Heire brought an action of trespasse against him for so doing and it was adjudged for the Heire viz. that this was to goe as part of the Freehold and Inheritance to the Heire and
with his sithe come as a Midwife to helpe her delivery if then by the hasty death of the Owner before Action brought this great Trespasse should be dispunishable it were contrary as me thinkes to the purpose of the said Statute and a great defect in the Law Yet here perhaps touching this a fourth difference may be or arise out of the time of the death of the Owner viz. where he dyeth before time of Mowing and where not for Dato that in the former case because if such destruction or consumption had not beene yet the Owner dying before severance this should not have come to the Executor but have gone with the soyle to the Heire that therefore the Executor who is not damnified should recover no dammages Yet in the other case the Owner living till after Hay time clearely passed viz. till the end of August me thinkes now since this fruite of the Meddowes wombe should have beene a Chattell severed had not this Trespasser made unlawfull prevention Therefore the Executor to whom the same should have come towards the performance of the Will should have out of the said Statute an Action and remedy reached unto him to recover recompence in dammages for this wrong done in retardationem Executionis Testamenti A fifth and last difference may perhaps be in the state of the Owner for Posito that where the Land is his Freehold or Copyhold Inheritance no Action should be given to his Executor for Wood or Grasse taken or destroyed in his life time yet where he is but Tenant for yeares Guardian or Tenant by extent so as the very state in the Land was to come and is come to the Executor together with Quicquid plantatur solo me thinkes the Executor should have together with the state in the soyle the Action to punish the Robber of or Trespasser upon the soyle Thus having scanned and sifted to the best of my ability all differences and circumstances of this point how farre I am wide and wherein right Aliorum sit judicium or rather Altioris esto judicii But this is cleare that wheresoever Executors doe recover any dammages for trespasse or other wrong done to their Testator the money recovered at least if Execution be had or money received will be Assets in their hands as well as debts recovered upon Bonds or Bills or Lands by them taken in Extent upon Statutes Recognizances or Judgements Yea without ever having these moneyes Executors may make them assets in their hands viz. by making Releases or Acquittances or acknowledgement of Satisfaction for this amounteth to a Receipt and chargeth the Executors towards the Creditors with the whole penall summe though happly they receive but part as the principall or some like proportion Therefore there is great caution to be used by Executors in this kinde that unlesse they be sure they have Goods sufficient to pay all Debts and Legacyes they make no Release Acquittance or Acknowledgement of Satisfaction for more then they doe receive be it debt or dammages And the like caution to be used by them touching submission of debts or dammages to arbitrement whereby discharges of the same may grow for the submission to the Arbitrement being their voluntary act although the Arbitrators by their judgement doe discharge the debt or dammage in part or in whole yet shall the Creditors have like remedy thereupon against the Executors as if they had released or which is more received the same Other Actions there be of discharge which as the Testator himselfe in his life time might have had so may his Executor after his death viz. Writs of Error Attaint Disceyt Avdita Querela Identitate nominis But this last is given by Statute Whatsoever is regained by any of these wayes as unduely lost by the Testator shall also be Assets Speciall cases pertinent to the Premisses 1. Chattells come to Executors from the Testators yet not Assets 2. Assets which be no Chattells 3. Things in Action and in the personalâ—y turned into Chattells Reall e contra AS to the first I exemplifie thus A. makes B his Executor and dyes B. makes C. his Executor and dyes The Goods left by A. to B. as Executor farre exceedes his Debts and Legacyes or let us suppose no debts nor Legacyes of A. and that B. dyeth much in debt above the Goods hee leaveth and did make no alteration of the property of the goods of A. but meerely left them to C. his Executor Now shall not the Goods which came to B. as Executor of A. and so from B. to C. be lyable in Law to pay the debts of B yet in Conscience me thinkes they should and that C. should not receive them to his owne use as in Law he may where A. left no debts But if A. making B. Executor did also by his Will give him all his Goods and he in his life time made election to have them as Legatee or by his Will did so dispose of them or appoint them to goe as the goods hee had as Executor could not be given or disposed Now by this election they were altered in property from being his as Executor and so as his owne goods should be liable to his debts But things in action could not be so given or disposed viz. Debts c. yet if D. were indebted to A. one hundred pound and B. his Executor tooke new bond of him or another for it giving up the old Bond now was it become his owne duty and so shall stand in his Executor Another instance of this thus If A. patron of the Church of D. grant to B. the next avoydance the Church becommes voyde B. dies before he presents his Executor presents and hath the benefit of preferring his sonne or friend yet shall this make no Assets in his hands for payment of debts for that hee could not lawfully take money to present But if B. had dyed before the Church had become voyd Then because the Executor might lawfully have sold it the value should be Assets in his hands as I conceive except perhaps the incumbent had died so hastily after B. that the Executor had not time convenient to finde out a chapman and to sell it If in the other Case a stranger had presented and got his Clarke admitted and the Executors of B. had in a Qua. Imp. recovered dammages the money so recovered should have beene Assets Thus much of the first viz. that some things of the nature of Chattells may come to Executors and yet not be Assets Touching the second viz. that some things may be Assets in the hands of Executors which yet are no chattells I shall give but two Instances First where a man leaveth a Villen for yeares to his Executors and the Villen purchaseth Land in Fee-simple and the Executor entreth into the Land now hath hee Fee simple therein and this Land is Assets for payment of the Testators debts
A. posessed of a Lease for sixtie yeares of one hundred pound Land mortgageth it for five hundred pound or be it that the mortgage or pledge be of a Jewell or peece of Plate for halfe the value and that before the day limitted for payment and redemption A. having made B. his Executor dieth and B. at the time and place maketh payment as was conditioned Now the question is whether this Lease Plate or Jewell being worth much more than the summe for which it was mortgaged shall be in him wholly in his owne right and to his own use or partly if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies Here it must be cleerely admitted that B. was inabled to this redemption onely and meerely by the Condition annexed to the mortgage or pledging It must also be admitted that this Condition and the power or interest to take benefit thereof to him came and was derived onely as Executor of A. This being premised it must needs follow as to me it seemes that the Condition working and having his operation in the redemption to destroy the Grant mortgage or pledging it must needs make these againe the Testators goods in statu quod prius and so to be in B. as Executor since in that right onely he was intituled to take benefit of the Condition For what is it which hindred before this from being the Testators goods nothing certainely but onely the force and strength of the mortgage or pledge Now by the redemption that is become voyd hath it losts its force therfore the property of these things must needs now be as if no such mortgage or pledge had beene or as if it had at the first beene voyde and of no force Thus must the Condition worke for him who made it viz. A. the Testator and those of the contrary opinion in the time of King Hen. 7. doe yet say That by this redemption the Testator is so much in debted to the Executor as he disbursed for the redemption which could stand with no reason unlesse by it the property and interest should be reduced to the Testators behoofe That thus it is is also proved as to me it seemes by the Case of mortgage of Inheritance upon which the heire making payment according to the condition is not now in as a new purchasor but as heire so as he shall have his age and be in Ward even for this Land Yea it shall be Assets in his hands for satisfaction of his Fathers or other Ancestors debts which in some respect is a harder Case than that of the Executor for he hath meanes to satisfie himselfe of the money disbursed either out of the thing redeemed or other goods of his Testator but the heire hath no such meanes Yet it will be asked how the Executor can be free from mischiefe for if this thing redeemed be intire as the Cup or the Lease the whole will be taken in execution for the Testators debt To admit this yet here is one cleare way of remedy viz. the Executor may before such Execution sell the thing and so pay himselfe and retaine the surplusage to the Testators use and the like of this is frequent in use viz. for Executors to pay of the Testators debt with their owne money and to make themselves satisfaction out of the Testators goods Besides it not impossible that this redeemed thing should be thus in interest parted that answerably and proportionably to the summe disbursed for redemption with reference to the value of the thing redeemed a moyetie or third part or three parts therof should be to the Executor in his owne right as his owne proper goods and the rest in him as Executor As posito that A. and B. were Tenants in Common of such an entire Chattell A. maketh B. his Executor and dieth Now hath B. one moyety as Executor and another as his owne proper and upon a Judgement against him as Executor that moyety onely which hee hath as Executor must be taken in execution and here may be remembred how in execution of a Judgement or levying of an Amerciament out of an intire Chattell of more value than the summe to be levyed the whole is to be sold and the surplusage above the debt or Amerciament is to be delivered backe to the owner For in all this debate we must presume the thing redeemed by the Executor to be of better value than the summe payd else wee may easily admit the whole to the Executor Againe the Lease for yeares is not so intire a thing I meane the Land let but that thereof partition may be made yea inforced by Action betweene joynt tenants and Tenants in Common But here will be objected the Case of redemption by the daughter and heire who though she have a brother borne after so as now she is no longer heire yet she shall as the Booke saith retaine the Land redeemed from the heire as a Perquisite or Purchase As for this which I will not oppose the Law so frameth to the favour of the daughter because of great mischiefe to her if being stripped of the rest of the Inheritance by the birth of a brother she should also lose that which her money had redeemed without having any remedy to have her money againe or any recompence for it but in the other Case there is no such mischiefe for that the Executor may pay himselfe as hath beene shewed Now on the other side if the Case shall be understood that the redemption was by payment after the day then will I easily admit that the property or interest is in the Executor to his owne use or that the Condition now having no power to reduce it backe or to operate any thing It is rather a re-emption than a redemption since it was at the Will of the Mortgagee to dispose it at his pleasure and any stranger as well as the Executor might thus have redeemed viz. repurchased it therefore onely Equity and not Law in that Case can make any part of the value Assets in his hands And so also I thinke if wee should admit in the other Case of payment at the day that the property of the chattell is to the Executor as his owne and not his Testators goods no part of surplusage of value can in Law be Assets howsoever in Equitie Lastly if the Executor redeeme by payment at the day with the Testators owne money or goods none will doubt but that the thing redeemed is in him as Executor and the money by him payd for redemption is well Administred the goods redeemed being of better value But this way it makes no difference whether the whole value of the goods redeemed shall be held Assets and the money payd for redemption stand drowned therein or that that summe be still adjudged in the hands of the Executor as Assets and onely the surplusage of the thing redeemed over and above the summe payd for redemption
might it be yeelded at another so as it were at any time before the day But yet there it was held that if no time of assent were limitted then one expresse deniall or refusall would be peremptory so as the refusall were expressed to the party to whom the assent was to be given otherwise if it were but in speech to or among strangers This and the former case 19. Eliz. give the best light to this point that I remember Now for disablement to assent it was held in the fore-mentioned case of Low and Carter that where a terme is bequeathed to A and after the testators death the executor takes a new lease of the same land for more yeares in possession or to begin presently now by this was the terme left by the testator surrendred and drowned so as it could not passe to A by the executors assent after As to the fifth point viz. in what manner a lease for yeares or other chattell reall may be bequeathed to one for a time with remainder to another it hath been heretofore much doubted when a lease for yeares was bequeathed to one for life or for so many yeares as he should live whether the limitting of a remainder thereof after his decease were of any validity in law or not and this doubt had this ground any state for life in the judgement of law is greater than any terme for yeares therefore when a termer hath by his will given his terme or his house or land which hee so holdeth for yeares to one for life or for so many yeares as he shall live this testator and devisor hath not in the judgment of the law any estate remaining in him and therefore it was thought very hard for him to give or limit a remainder to another But after many arguings and debatings it was in the late Queenes time resolved that such a remainder was good and that if the first devisee died before the terme expired that then he to whom the remainder was limitted might enter and enjoy the residue of the terme As for the giving of part of the years to one and the residue to the other viz. If the terme being twenty yeares the Lessee bequeatheth ten thereof to his wife and the remainder to his daughter Of this no doubt ever was but that it was good for that after the first state limitted there remained a further terme viz. ten yeares more in the Devisor whereof he had power to dispose whereas in the other case after the terme limitted to one for life there remained but a possibility that this life should not take up the whole terme But now put we the case a third way viz. that the termor deviseth or bequeatheth the thing in lease to one child intaile with remainder to another and dieth and the first entreth and dyeth without issue now whether shall the next in remainder or the executor of him so dying have the terme residue and this case came in question and was adjudged about the middle of K. Iohn his reigne in the Exchequer for there Master Hamond holding by lease for yeares from the Crowne the manner of Akers in Kent devised the same by his will to Alexander Hamond his eldest son and the heires males of his body with remainder to Ralfe Hamond another son in like manner and the like remainder to Thomas Hamond and made the said Alexander executor who after his fathers decease elected to take as legatory and after Ralfe Hamond died leaving issue male and making his wife executrix Alexander not having issue male granted the whole terme by deed to B and C. for the behoofe of himselfe and his wife during their lives and after to the use of his yongest daughter whom Sir Robert Lewkenor married then Alexander dying without issue male the wife and Executrix of Ralfe Hammond entred claiming the terme and being kept out sealed a Lease whereupon an Eject firmae was brought and a Jury appearing at the Barre in the Exchequer found a speciall verdict in effect Vt supra And in argument of this Case first the maine question was whether this case were all one in Law with the former where a terme was devised to one for life which remainder over so as by the death of Alexander Hammond without issue male the terme should goe to the next in remainder as in the other Case by the death of the devisee for life dying within the terme it should doe And on the plaintifes part it was urged to bee all one so that by vertue of the Bequeasts supra Alexander had an estate to him and his Executors onely so long as there should bee heires males of his body and hee dying without such issue the terme remained to the Executors of Ralfe who had the remainder in like manner and left issue male which still lived and so that seate of Ralfe yet had continuance For it was admitted by the counsell on that side that the terme could not goe to the issue male of Ralfe according to the words and intent of the will since it was impossible to make a terme to descend without an act of Parlament This therefore they said the Law should worke which was neerest to the intent viz. that after Alexanders death it should goe first to his Executors and assignees so long as issue male of his body doth continue and for want of such issue then to Ralfe his Executors and assignees so long as his issue male should last and therefore in this case the issue male of Alex. failing the executor of Ralfe whose issue male fayleth not should injoy the terme and so judgement ought to be given for the plaintife being lessee of that Executor on the other side it was said by the defendaâ—ts counsell that this Case differeth much from the other Case where the terme or Land held by Lease is given but for life to the first with remainder to another which Case as having beene often resolved was clearely admitted to bee good law for in that case the intent of the Testator might and did take effect But in this case if the land should goe to the Executors and assignees of Ralfe Hammon it must goe against the intent of the Testator whose mind and wil was as it appeares by his word that it should goe onely to the issue male of one sonne after another and not to any Executors Now then since this intent was so contrary to the rules of Law that it could not take effect therefore it must be voyd and so all the words of heires Male standing voyd the Will is to be construed as a sole and absolute gift and bequeast to the said Alex. consequently the terme must goe to his Executors and assignees And for this point resemblance was made to a Case resolved in the Kings-Bench where a Lease was made by indent to A. Habend to A. B. and C. for their lives now because B. and C. could take
nothing it was resolved that A. should not have iâ— for their lives but for his owne onely This Case was said to come very close in reason to the Case in question for as heere the intent of the Lease was that B. and C. should bee estated for their lives and since that could not bee therefore the naming of them should bee utterly voyd and as if they had not at all beene named and their lives shall not stand as a measure for the estate of A. So in thother Case the intent of the will being that the Lease or Land leased should goe to the heires Males of the body first of Alexander and after of Raulphe since this cannot bee therefore the words and name of heires males should stand for a meere blancke and cipher and not to measure out any state to the said Alex. and Ra. and their Executors and assignes Also it was said on the defendants part that an estate for life in the judgement of Law is of so short and uncertaine continuance that if A. make a Lease to B. for his life and after makes a Lease of the same Land to C. for yeeres now shall not this latter Lease bee voyd absolutely for any part of the terme but shall stand in expectance of the death of B. and as soone as hee dyeth shall take effect immediately whereas if the Lease to B. had been for ten yeeres or any like terme then the Lease to C. should have beene voyd for so many yeeres of his terme thus it appeares that a State for life is very momentary in the judgement of Law and not reputed of any certaine continuance so much as for a day but it is otherwise of an estate tayle so as if A. having given Land to B. in tayle doth after without indenture which makes an Estoppell make a Lease to C. for xxj yeeres and then B. dyeth without issue during the terme yet shall not the Lease take effect because it was utterly voyd at the first making For an estate tayle being a state of inheritance may in the intendment and judgement of Law have continuance for ever as appeares both by the Case of Adams and Lambert where it is held within the Statute of Chaunteries which speaks of gifts to have continuance for ever Therefore a reversion upon an estate tayle is no assets nor giveth cause of receipt otherwise in all these Cases it is touching a reversion expectant upon a state for life Againe it was said by the defendants councell that an estate may bee limitted to A. and his heires during the life of B. with remainder to C. as in Chudlies Case was resolved but if Land bee given to A. and his heires so long as B. shall have heires of his body or heires males with remainder over to C. this remainder is utterly voyd So as there is in the judgement of Law a great difference betweene the largenes and continuance of an estate tayle and of an estate for life And if which is worth the observing a feâ— simple cannot afford a remainder to bee drawne out of it after such a gift to one and his heires during the continuance of an estate tayle or of the measure thereof much lesse can a terme yield such large thongs to bee cut out of it as a remainder after an estate to one so long as hee shall have heires of his body or heires Males which is all one And in this case the remainder was held voyd by Baldwin and Shelley though Engl field were of contrary opinion as the Lord Dyer sheweth Further it was said that if such a conveyance by will should stand good it would raise a perpetuity not to bee cut off by any recovery But whereas the case of Hammon hath beene related before so by way of admittance it was argued as a gift and bequest to Al. Ham. and the heires Males of his body with remainder in like manner to Ralfe The truth of the case was that the words of the will were onely to Alexander and his heires Males not speaking of his body and so to Ralfe which as was urged by the defendants counsell made the Case stronger against the plantifes for admit that the former way Alexander should have had but a state determinable upon the continuance of his issue Males yet here not so Since the reason why in Willes such a devise being made the Law should supply the words of the body is onely to make an estate tayle to the issues Male according to the Testators intent Now in this case of a terme for yeares so bequeathed no estate tayle could possibly bee though these words had beene in the will and therefore the motive to the Law fayling no such supply will bee made by the Law since it would bee to no purpose consequently here was neither state tayle nor issues or heires Males of the body on whose continuance this state of Alex. should bee determinable Therefore it was an absolute and totall bequest of the terme to Alexander for ever viz. so long as the Terme should continue for as a bequest to one for ever is asmuch as a bequest to him and his heires so a bequest to one and his heires is as much as if it had beene to him for ever And this Case after sixe arguments on each side at the Barre if I much mistake not was upon argument by the Barons adjudged for the defendant by the Lord chiefe Baron Tanfeild and M r. Baron Bromley M r. Baron Denham who onely heard as I take it one argument on each side made of purpose in respect of his comming into his place after the former arguments being of the contrary opinion and the judgement proceeded upon the point formerly touched that as this case was the state of Alexander did not end by his death and remaine to the Executors of Ralfe Other points were stirred which will bee touched upon other divisions after in this Chapter It will be observed that I doe more fully expresse reasons and points inforced on the defendants part then on the plaintifes whereof let these two reasons bee accepted First That I better could relate that then the other being the first who argued for the defendant and hearing little of that which was by others said on either side after nor hearing the Courts Nec ad hoc conductus nec pedibus fortis Secondly the labour did lie on the defendants part to prove that this Case differed from the common case of devise to one for life with remainder to another Wee are now come to the sixt point viz. that where House or Land held by lease or the proffits thereof or the lease or terme it selfe which in a Will makes no difference is bequeathed to A. for life or for some part of the terme with the remainder to B. and the Executor assenteth that A. shall enjoy his bequest whether this shall enure to B. also since without the Executors assent no legacy can take
29. Eli. Inter Brooker Carter in Ba. com 9. Ed. 4. 33. The Booke calls him Cardinall of Canterbury 9. Ed. 4. 47. Selling Land as Executor is Admin Dyeâ— in Case of Greisbrooke Foxe Plow com 280. b. Pas 7. Eliz 36. Hâ—n 6. f. 7. 8. Micâ— 27. 28. Eliz 〈◊〉 Case in com 〈…〉 A. being Executor did adminâ—ster and yet would not prove the Will B. tooke Administration and being sued for debt did pleade the matter supra and held a good plea and was found for him before â—ust 〈◊〉 ad Oxâ—n in aestat 1. Carâ—l reg 36. Hen. 6. 7. 20 〈◊〉 4 17. and 21. â— 4 5. 21. Ed. 4. 5. 21. H. 6. 19. 20. 33. H. 6. 31. 8. 1. Eliz. Dy. 166. 13. Ed. 3. Exâ—c 91. 3. 4. Ma. Dy. 135 26. H. 8. 7. 8. 20. H. 7. Kelw. 63. 21. Ed. 4. 5. 20. H 7 f. 5. a. 9. Ed. 4. 12. 13. 33. H. 6. 31. 4. Cooke lib 5. f. 2â— Cont. 18. E. 2. Bre. 8â—7 22. Ed. 3. 19. 15. Ed. 3. Exec. 8. 41. Ed. 3. fol. 〈◊〉 21. Ed. 4. fâ—l 24. 42. Eliz. Co. 9. f. 36 37. 4 5. 〈◊〉 Ma. Dy. â— 69◠〈…〉 2â— â— â— 4. 23. 24. 33. Hen 6. 38. a. 〈◊〉 9. 37. 6. 32. Hen. â— â—25 27. Hen. 8. 11. 〈◊〉 curâ—am 9. Ed. 4. 33. Co. 9. fol. 36. 2. R. 3. Fitzh 4. Co. lib. 9. fol. 43. 11. H. 7. 12. Flow. Coâ— 279. 1 Cor. 4. 2. Acts 20. 27. Vide â—ol proxim If Bona Notabâ—â—â— both in Canterb. and Yorke Canon 92 93. â—1 Eliz. Goods considerable or 〈…〉 Hil. 37. Eliz. M. Comâ— Da. Vide 13. 14. Eliz. Dy. 305. 22. Eliz. 9. Ed. 4. 47 22. Ed. 4. 50. 22. H. 6. 52. Plow Com. 282. 44. Ed. 3. 32. 19. Ass p. 2. Plow Com. 281. a. 283. 18. H. 6. 22. 2. 9. E. 4. 33. 47. Not to make good a Release made before Co. lib. 5. 28. 36. H. 6. 8. 2. Ma. Dy. 110. See also 31. E. 3. cap. 11. An Administr shall account as an Executor Fitzh Ex. 91. and 837. viz. 18. E. 2. tit Briefe 48. E. 3. 14. 15. Of a duty resting in account it is said the Legatee shall have remedy by account in the Spirit Court 81. Ed. 4. f. 3. Moyle 4. H. 7. 15. per Wood. 9. Ed. 4. 47. Dost Stu. 78. b 21. Ed 4. 22. Plow Com. 544. 4. H. 7. 15. Kelw. râ—p 64. a. Temp. E. 1. Assise 〈…〉 37. Ass p. 〈◊〉 4. E. 3. Ass 166. Brâ— Chaâ— 15. â—9 E. 3. 37. So Manwood if granted for life it is but a chattell Plow coâ— 524. 〈…〉 88. Reg. orig f. 102. There is mentione that the prisoner was to have a 190. l. for his ransome Bro. no. ca. 295. tis Property 38 1. H. 6. cap 5. 10. E. 4. 14. 15. Come of wilde ones 22. H. 7. Relw. rep f. 88. 118. co lib. 11. fo 50. 18. H. 8. 2. 10 E. 4. 14. 15. 18. E. 4. 8. So of young Hawkes in the nest It is felony to steale these Ergo. they be goods So an Hunters horne a Falkoners lewer Hares Deere Fesants Partridges wilde Duckes c. are good â—eate Fo. 142. Hen. 8. fol. 3. Rootes of Carrots Parsnips Land sold wherâ—n is ripe Corne For he was Tenant for life in effect The Wife also shall have convenient apparell 33. H. 6. 31. 2. Eliz. Dy. Co lib. 11. f 48. Of Houses or things about the House 42. E. 3. 6. â—1 H. 7. f. 26. 42. F. 3. f 6. H. 37. Fliz. Austins case 〈◊〉 lib. 4. f. 63. 64 Things in Gaâ—dens 〈…〉 2. 36. H. 6. 2â— 18. E. 3. 4. â— H. 7. 15. Quae. If sole use that way make a difference or not See Stat. 〈◊〉 H. 8. cap. 17. Remedy for Rents of Inheritance or for life A Church of the Testators Inher become voyd in his life comes to the Executor as a thing in action but is not Assets for not vendible 11. H. 4. 32. 45. E. 3. 3. 〈◊〉 na br 59. 4. E. â— c. 7. And the like given to Executors of Executors pâ—r 〈◊〉 25. E. 3. c. 5. 17. E. 3. Fit 106 cap. 21. meant 〈…〉 21. H. 6. 1. but 〈…〉 contra 21. H 8. cap 19. 4 E. 3. The B. of Coâ—â—nt â— and Safes case M. 32. 33 Eliz. in com ba. So of Ravishment Dl. gard 7. H. 4. â— 7. H. 4. 6. Erect 〈◊〉 Tild Do â—lauso fracto meerely it lyeth not 11. H. â— 3. This Tâ—riaÌ„ Iust did very judiciâ—â—â—sly urge in Sâ—les case supra At least me thinkes Action upon the case here and before should be maintaineable 3. H. 6. 3. Litleton fo 42. a. So held in Sales case of dammages in Qua. impe recovered conte of the presentment Releasing 13. Ed. 3. 〈◊〉 9â— Error 1â— H. 4. 65. 46. E. 23. Yet upon a verdict in Qua. imp the Wife not the Executor of Husband did seise 9. H. 6. c. 4. Or if a strange usurpe in his life and he dying his Executor recovers in a Qua. imp as by Sale was done infra Mich. 32. and 33. Eliz. So held in Sales Case in com ba. Vende◠〈◊〉 pâ—test emerat ipse prius 22. H. 8. 〈◊〉 Villenage 46. If he dye how shall this be Assets in the heire 3. H. 63. and so 2. Hen. 4. 21. If by Feoffment per Markam cap. Iâ—st contr Rickâ—ill See 9. El. Dy. 264 9. H. D. 264. 14. H. D. 31â— Note Diff. â—1 Hen. 7. Plowd Com. 11. H. 6 35. per Babington 24. E. 3. f. 35. 32. H. 6. 34. â—itl tit villenage 41. 42. 10. E. 4. fo 1. Yet 39 H. 6. f. 15 A release of all actions by an Executor extincts actions as Executor But Frowicke iâ— against it in 20. H. 7. Kâ—l 64. See these so resolved in Plow com 525. intâ— Râ—ansby Grantham P. 20. Eliz. This may be in his name onely out of whose possession the goods were taken Co. lib. 5. fo 32. 34. H. 6. 43. Co. lib. 9. 88. b. See this also Ploâ— com 520. a. 21. Hen. 6. 30. If other goods taken among them he is excused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded 43. E. 3. 24. Brâ— 145. Makes a quae if it be locked Plow com 280. 43 Ed 3. 2. 10. Ed. 4 5. 6. Of the Deed execution first 12. H. 4. 7. Hen. 4. f. 31. See Bro. Exe. â— 24 Co. l. 3. f. 90. 91. To like purpose see more Litl f. 77. b. 2. Eliz. Dy. 281. Plow com 291. 21. Hen. 7. 4. A Are as one person therefore cannot plead severall pleas 〈◊〉 abatement 3â— H. 6. 17. 9 H. 6. f. 44. 38. E. 3. 9 Bro. Ex. 13. Brâ— Ex. 20 21. Therefore one Executor sued iâ— he plead that there is another Executor not sued must plead that he did administer 9. H. 6. 44. Bro. 13. 33. H. 6. 38. â— â— 20. 32. E. 3. quid jur 〈◊〉 5. â—3 H. 4 Aid â—86 A 9. Ed 3. cap. 3. A B But not if he
other the goods chattels or credits he hath as Executor the property not being altered for that he hath not them properly as his own or to his owne use onely he may make a continuation of the Executorship and his Executor shall have them as Executor to the first Testator as was resolved by the Judges of both Benches in the late Queenes time And if he be Administrator the bequest is then also voide nor then will they goe to his Executor but to a new Administrator but on his death-bed he may give them by Word or Deed though not by Will Next if a man have debts owing to him as many have much it is considerable whether by way of bequest in his Will hee can give away these to any from his Executors And doubtlesse he cannot effectually in Law they being not subject to assignement unto any except the King So as if he give such a debt to A. and such to B. yet must the sute for them be in the name of the Executor and so also the Release or Acquittance for them and not in their names to whom the bequests is But when they be received if there be no debts to pay the Executor ought to deliver them to the party to whom the bequest is and therefore may be compelled in Court of Conscience or in the Spirituall Court Therefore the Case of the bequeathing money payable upon a Morgage is in this manner to be understood to be good and not otherwise as I take it He that is joyntly with any other estated in Lands or goods can give no part by his Will but all will survive but by Act in his life hee may dispose of his part and the Assignee may dispose of his moiety by Will yea though it be halfe an Horse or Oxe that cannot be divided So of a Lease of Lands or Tithes or Grant of goods to two habendū one moyety to the one and the other moyety to th' other each may give his moyety by Will But if one be possessed or estated for yeares by Lease Wardship or Extent c. in the right of his wife or have the next avoidance of a Church in her right he cannot by Will give or bequeath any of these but notwithstanding they will remaine unto his wife upon his death but yet his Gift or Grant of them taking effect in his life time would binde his wife and carry away the interest from her If one be Tenant for the lives of one or more others as oft times men take Leases for lives of yonger persons than themselves this cannot be by Will disposed of for that it is no chattell nor is it within the Statutes of Wills for that it is no state of inheritance Therefore let the party looke to convey it in his life time lest it goe to an Occupant viz. him who first shall enter If it be a State in Land hee must either make Livery have a bargaine and sale inrolled or covenanted to stand seised to the use of his wife or some of his blood or make a Lease for yeares determinable upon those lives Good it be by bargaine and sale for yeares if the thing be in Lease that so without Inrolement or Atturnement the Rent may passe else a bargaine and sale may be made for a moneth or such like time and then a Release or Grant of the reversion in stead of Levery Seisin But if a man have a Lease for never so many yeares determinable upon life or lives that is if such or such live so long which unskilled persons call a Lease for lives this State may well enough be given and disposed by Will because it is but a chattell If a man seised in Fee or in Tayle of Land having Corne growing upon it and by his Will doe give the Corne and die before severance this is a good bequest because the Corne should have gone to the Executor So it is also of a Parson touching his Glebe and a man seised in the right of his wife or his owne right but for life But as for trees growing upon the ground these can no otherwise be given by Will then as the Land it selfe upon which they grow may be given of which matter as not pertaining to the Office of Executors viz. How and in what manner Lands may be given by Will I entend not to treate in these discourses Of the Revocation and Countermand of Wills and new Publication HAving considered of the making of Wils and Executors Let us before wee come to the Probat consider of Revocation for that may take away the force of a Will rightly made A Will therefore having two parts viz. Inception which is the making and Consummation which is the death of the Testator or maker of the Will there is power in him at any time before death to revoke or alter his Will at his pleasure Consider we therefore of Revocations and also of new Publications or Reaffirmance of Wills in whole or in part As therefore a Will may bee made by Word So also may a Will made in Writing be by Word revoked or disanulled for since every making of a later Will is a Countermand and suppression of the former Will and since a Will may be made Nuncupatively or by Word and so by making a verball Will one may revoke a Written Will It will thereupon follow that one by Word may expresse the alteration of his minde thus farre that the Will by him formerly made shall not stand but be revoked and annulled and this will stand and be effectuall so as if he after dye without making any new Will or new Publication or Reaffirmance of the former he dyeth intestate or without will As a Will may bee wholly revoked so also in part Hereabout a good resolution was in a Kentish Case where one Ryete by his Will in writing did give some Gavel-kinde Land to one Harrison and five dayes before his death said in the presence of witnesses that this gift should not stand and that he would alter it when he came home desiring them to beare witnesse of his Revocation Now before he came home he was killed by the said Harrison who caused the Will in writing to be proved and after he was attainted and hanged for the murther and his Sonne by the Custome of Kent viz. the Father to the bough and the Sonne to the plough entred into the Land and this manner of Revocation by word onely was held sufficient although the Will in writing were not cancelled nor defaced And the like resolution for verball Revocations is implyed in the Case of Forse and Hembling where it being resolved that a Feme Covert or marryed woman by word Countermanding and Revoking her Will formerly made when she was a sole or unmarryed Woman this was not effectuall nor of force by reason of her Coverture taking away the freedome of her
Will hereby it is implyed that another who hath freedome of Will may by Word sufficiently revoke a Will in writing and so was it since also admitted in the Case between Sir Edward Mountague and Ieoffryes touching the Will of Sir Io. Ieoffryes but there a difference was conceived betwixt saying I will revoke my Will which only expressed a purpose or intent therfore was no present Revocation and saying I doe revoke it or it shall not stand or my heire shall have my Land which crossed the gift of it by the Will And as Wils may be wholly or in part revoked so may also the executorship of one or more of the Executors and yet the Will may stand in all the other parts so as there be any one Executor or more unrevoked but if all be revoked then the whole Will is revoked because no Will can stand without Executors and this Revocation may be by Word onely without being expressed in the Will or any other writing But I would wish all to expresse such revocation in the foote of the Will or that the name or names of the Executor or Executors so revoked be expunged or blotted out of the Wil and that this be done in the presence of some witnesses to testifie the act and intent of the Testator Againe Revocations may be by act in Law as well as in fact or by direct and expresse termes as in the said Case of Mountague and Ieoffryes where Land being devised by Will and the Devisor after making a feoffement though there were some defect in the Livery to make it effectuall or if he made a bargaine and sale that was never inrolled or granted the reversion but no atturnement had so as the Land passed not yet in all these Cases the Will or gift of Land stood revoked But in Case he had onely Covenanted that he would have made such an estate and not done it this was held to bee no Revocation And so by some in case he doe but make a Lease leaving the Fee simple as it was but of this Quare And if a difference may not be betwixt making a Lease for yeares and a Lease for life which altereth the Freehold If a Lease for twenty yeares be bequeathed to I. S. and after the Testator maketh a Lease for fifteene yeares reserving a Rent I take this to be no Revocation of the bequest but if the Testator after this Will made take a new Lease for a longer terme so as the former Lease is surrendred in fact or in Law this must needes be a Revocation of the bequest or at least an adnullation thereof and that although the bequest were generally of his Lease not mentioning the number of yeares for this which he now hath is another Lease and not that which he had at the time of the making of the Will So if one give his blacke gelding by Will and after before his death he selleth or giveth away that Horse and buyeth another blacke one this new gotten Horse shall not passe by the Will because it was not the Testators at the time of making his Will So also if the Crop in the Barne be bequeathed in October and the party lives till that time twelve month having sold that Crop and Inned a new this later Crop shall not passe by the Will and the former cannot Againe as revocation may be by alteration of the State of the Devisor in the Land Devised so may it also be by alteration in some case of the state or quality of the person of the Devisor As if a woman sole make a Will and after take a Husband this without any more as is resolved in the said case of Forse and Hembling doth worke a Revocation or adnullation of the Will for that else it should be irrevocable since shee having lost the freedome of her Will cannot actually and directly make a Revocation as we before have shewed But notwithstanding her Will be revoked yet in case her Husband before or after marriage with her were bound or Covenanted to performe this womans Will if he so doe not by payment of the legacies therein bequeathed his Bond or Covenant stand good and be sutable against him as was adjudged touching the Will of Elizabeth Smaleman marryed after her Will made to one Wood. Who first was bound to performe it yet another case there is of Alteration in the state of the Testators person which makes no Revocation of his Will As if he being of sound minde and ability make a Will and after becommeth franticke In this case this is no Revoction So as his Will stands till his death irrevocable if he recover not Now of a Will Revoked there may be a reviver by a new Publication and therof now Of new Publications HAving shewed how a Will may be revoked and so lose its force let us now see how without making a new Will that so revoked may be revived and set on foote againe And that is divers wayes as First by a Codicell annexed after thereunto as was resolved betweene Betford and Barnecot in the Kings Bench. Secondly by adding any thing to the Will or making a new Executor c. Thirdly by expresse speech or word that it should stand or be his Will as I conceive to have beene the better opinion in the said case of Mountague and Ieoffryes wherein yet was much difference of opinion both touching Revocation and new Publication If a man having made a former Will doe make a latter which is more than a bare Revocation yet if afterward lying upon his death-bed and speechlesse both these Wills be delivered into his hand and he required to deliver to one of his friends about him that Will which he would have to stand and to keepe in his hands th' other he thereupon delivereth to the Minister or other his neighbours the first made Will retaining in his hands the latter as was done in the time of Edward the third Here the former Will though made voyde many yeares before by the latter is revived and shall stand as the Parties Will. But now put the case that a Bequest at the first is voyde yet by Publication after it may be made good as if one give to Sar. his wife a peece of Plate or other thing and hath no such Wife at the time but after marryeth one of that name and then publisheth his Will againe now this shall bee a good Bequest So if one Devise Lands or Goods which one hath not If he after doe purchase the same and then say that his Will before made shall stand or be his Will It shall be a good Will and Bequest for this is in effect a new making And though most of the precedent cases be of Revocation of particular parts of the Will and not of the totall Yet first be it considered that that part so revoked was in effect the substance of the Will Next it is easily discerned that
erroneous Probate hath 4. What relation either Probate or Reâ—usall hath As touching the first Point viz. How and where and before whom Wills are to be proved briefely thus The proving is in the Spirituall Court yet in some Manors by Prescription Wills are to be proved before the Steward though no Lands thereby passe as appeares by divers Bookes and in the Manor of Maunsfield is this Prescription and in others whereof Tremaile was Steward in King Richard the third his time as he declared and the like I may tell of my owne knowledge touching the Manors of Cowlâ—y and Caveâ—sham in the County of Oxford where I have kept the Courts for the Lord Vicount Wallingford and found it in present and frequent use And it is said by the Judges in the time of King Henry 7. that this proving of Wills in the Court Spirituall is not ancient but of later time Yea it is acknowledged by Linwood the Deane of the Arches that it pertaines not to the Spirituall Court of Common right nor is so in use in other Kingdomes The reason why the Law of England hath herein given way to the Ordinary and Court Spirituall is said by Walsh in Greisbrooke Foxes Case to be the pietie and integritie which is presumed to be in those of that Function having charge of soules Indeede they are as it seemes to me Executors of the New Testament or last Will and Testament of Iesus Christ wherby great Legacies and Gifts are given to men by Pastors to be dispensed distributed of which distributers it is required as S. Paul saith That they be found faithfull And happy are they who with him can pleade Plenè Administavit viz. that they have fully Administred as he did much depending thereupon viz. Gods honour the blessing prosperity safety of the Country the Pietie Justice Conscience Contentation and Salvation of men As for Wills proved in London and Oxford before the Major that is onely in respect of the Burgages within those places devisable but they were to be proved also before the Ordinaries in respect of the goods and there onely where no Lands bequeathed The proving then is to be before the Ordinary Generall particular or speciall By Generall I meane the Metropolitane or Archbâ—shop before whom it is to be proved in case the Testator have goods valuable called Bona notabilia in divers Diocesses whereof he is Superior Of Bona Notabilia VVHat shall be said to be Bona Notabilia is considerable for there about hath beene much diversitie of opinion Some holding that they must be of fortie shillings value some five pound some tenne pound yea some that the value of a penny sufficeth to draw it to the Archbishop from the particular Bishop But that difference of opinion I conceive to be now cleared by a Canon made in the first yeare of his Majesties Raigne at a Convocation then held whereby it is established that five pound shall be the summe or value of Bona Notabilia yet therein is this Provâ—so that where by Composition or Custome in any Diocesses Bona Notabilia are rated at any greater summe the same shall continue not altered It is likewise thereby provided that if any man die in Itinere viz. in his journey or travell the goods which he then hath about him shall not cause that Administration shall be committed or the Will proved before the Metropolitane Having considered of the value now another Point observable is what things shall be said to be Bona Notabilia And as to that debts owing to the Testator are Bona Notabilia as well as goods in possession their value being answerable yet I thinke if the Penall summe of the Bond be but five pound for payment of a lesse summe although the Bond be forfeited yet in the Spirituall Court where respect to Conscience suppresseth the favouring of Executors this will not be taken to be Bona Notabilia viz. of five pound value although in Law the whole penall summe be a dutie But if the debt be five pound or more though it be desperate or due from the King against whom no Sute can be but only by petition yet will this stand for as Bona Notabilia as I take it in the Court Spirituall though thereabout I can but coÌ„jecture since the Rules of our Law determine it not And this Point touching the Kings being debtor I finde debated in the late Queenes time but not resolved so farre as I finde but there Popham at the barre urged that no debt should be Bona Notabilia and if it should yet not such for which no remedy by Sute as in that Case the Queene being debtor Yet a further Question Locall is touching these debts or things in ActioÌ„ in what place or Diocesse they shal be said to be as Bona Notab viz. whether in the place where the debtors be or where the Obligation or other specialties be And as to this the Law hath bin taken that because the persons of the debtors be moveable passant and transitorie therfore these debts shall be said to be and to make Bona Notabilia where the Bonds or other Specialties be and not where the debtors inhabit and dwell and so was it not long since conceived by Justice Walmesly and Justice Beaumont in one Pretimans Case no other contradicting it Herein therefore many are mistaken who only in respect that the persons of the debtors do dwell in forraine Diocesses other then the places of the death of the Testator or where his other goods were doe take Administration in the prerogative Court though the Specialties remained where the party died or his goods residue were But in case the debts be onely by Contract without Specialtie then indeede they are to be esteemed Bona Notabilia there and in that place where the debtor is as the said Judges well ceived the difference But in case Land be given to Executors for payment of Debts or Legacies this shall not be Bona Notabilia as I take it though it be Assets Of the validity and invalidâ—ty of Probates AS to the third Point we will first see of what validity an erronious proofe is and thereabout we shall finde this difference admitting that one hath not Bona Notabilia in divers Diocesses so as of right the proving of the Will appertaineth not to the Metropolitane and yet the Will is proved before him this is not meerely voide but stands in force till it be reversed by some sentence upon appeale as was resolved betweene Veare and Ieoffries in the late Queenes time But on the other side in Case one have Bona Notabilia in divers Diocesses or a Peculiar and a Diocesse and yet the Will is proved before the Particular Bishop within whose Diocesse part of the goods are this is meerely and utterly voyde without any reversall So also of proving in some Peculiar And in Case one have Bona Notabilia both in
So if a man by his Will give Lands in Fee to his Executors to be sold for performance of his Will These before the money thereby raised are Assets both for payment of debts and of Legacies But if the Lands had beene given to be sold onely for payment of debts they should onely be Assets for that purpose and not for payment of Legacies and so if it were expressed to be for payment of Legacies singularly this should not be Assets for debts as I take it For since these are not Assets of their owne nature but so made by the Will and disposition of the Testator me thinkes they cannot be otherwise nor farther Assets than as the Testator hath willed and disposed but though Lands thus given were Assets before the Stat. 21. Hen. 8. cap. 5. Yet how can it be so since for the very words of the Statute be that if one will by his Testament or last Will any Lands c. to be sold neither the money thereof comming nor the profits taken shall be accounted as any of the goods or chattells of the Testator which I conceive to be all one as to say that they should not be Assets for when an Executor denieth himselfe to have Assets the forme of his plea is Quod nulla habet bona nec â—atalla c. Yet since that Satute viz. in the late Queenes time the Law was twice admitted or conceived still to be according to the third of Hen. 6. viz. that the Land devised to be sold or the money thereof comming should be Assets Indeede in neither of those Bookes is there any mention of the clause in the said Statute and it is possible that it might be forgotten as in other Cases sometime hath happened But casting about how to reconcile those Bookes with the said Statute and not to suppose the same forgotten at both times both at the Barre and Bench though being but a short clause in the middle of a large Statute to other purpose it might well so have beene at the last though not hastily I grew to conceive that the said clause being in an Act which limitteth the Fees of Ordinaries and their Scribes according to the value of the goods of the deceased and then bringeth in this clause that the Lands willed to be sold shall not be accounted as any of the goods c. The Parliament meant thereby onely to exclude them to this purpose that they should not be accounted as part of the goods in the valuation according to which the said Fees were to be rated and though the words be generall that they shall not be accounted as any of the goods c. yet is it the more probable that the Parliament meant no further then as aforesaid because that clause after the Fees limitted in answerablenesse to the values is brought in by a Proviso viz. provided alwayes that if the deceased Willed any Lands to be sold the money nor profits shall not c. And thus perhaps it was understood and construed in the said late Queenes time though no mention be of any remembrance of that clause or provision in either of those Cases reported by the Lord Dyer As for the third viz. the changing of things out of the personalty into the realtie and e contra I shew it thus If a debt were due to the Executor as Executor by Statute Recognisance or judgement and he sue Execution and have Land of the debtors in extent now is the personall duty turned into a chattel reall On the other side if such an estate by extent or a Lease for yeares mortgaged come to an Executor and the debtor or mortgager payeth the money due now are these reall chattells turned into Assets personall Another speciall Case of Equity opposing Law IF A. be bound to B. by Bond Statute or Recognizance for assurance of Land B. dieth the Land descends to his heire or be it that B. sold the Land to C. and assigned to him the Bond Statute c. yet must the Sute or taking out of Execution be in the name of the Executor of B. and neither of the heire nor Assignee And that which is recovered or gotten in extent will be Assets in Law to charge the Executor as I take it yet in equity it pertaines to the Heire or Assignee Quaere If the Executor meddle not but onely suffer his name to be used Of things come to Executors by Condition First we will consider of Conditions bringing backe to Executors goods or chattells granted away by their Testators Touching which there is no doubt but if the Condition be any other than for payment of money or other things valuable by the Testator or his Executor the chattell returning to the Executors is Assets in his hands as put the Case a Lease for yeares Horses Sheepe Plate or other Chattell were granted by the Testator to A. upon condition that if A. did not pay such a summe of money or doe such other Act as the Testator appointeth and this condition is not performed after the Testators death now is the chattell come backe to the Executor and is Assets But the question hath beene and perhaps may be where the condition is that the Testator or his Executors shall pay the money to make voyde the Grantee and accordingly the Executor after the Testators death payeth the summe out of his owne purse not having any money of the Testators in his hands in this Case comming in question tempore Hen. 7. It was resolved at the last that this redeemed chattell should not be Assets but be to the Executor as his owne proper goods though at the first three Judges were of contrary opinion viz. that the goods redeemed should be in the Executor as goods of the Testator And truely I must confesse that I cannot yet finde good satisfaction in that Bookes resolution except wee shall take the Case there to be such as that which is put and reported by the Lord Dyer tempore Hen. 8. viz. that the money payd for redemption was as much as the full value of the goods pledged or mortgaged or else shall admit the Case to be that this redemption was not by payment at the day conditioned As to the first it were rare that any should lend money upon a mortgage where the thing mortgaged is not of better value than the money lent rare also that an Executor should take care to redeeme with his owne money that which should yeeld no benefit or advantage to him or his Testator Let us therefore scanne and examine the Point since the same may come frequently in use and this we may the more decently doe because the Lord Dyer in the Margent of the Case by him reported as aforesaid saith expresly that the said other temp Hen. 7. was not at all adjudged himselfe having viewed the Roll which he there sets downe and the names of the parties Wee will therefore put the Case thus
Things accrued by Covenant or Assumption IF A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be in him as Executor and consequently as Assets This is proved by the Judgement in the Case betweene Chapman and Dalton in the late Queenes time Yet I confesse that it is not expressed in the resolution of this Case that this Lease should be Assets but that the Executors should have the Terme as Executors which implyeth as much in my understanding and the declaration whereupon the Defendant demurreth sets forth the breach of that Covenant to be in retardatione executioâ—is testament so as the dammages thereupon recovered viz. 300 and 30. pound were Assets and consequentâ—y also should the terme have beene in â—ew and recompence whereof these dammages were given The like Law if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Mault or so many loades of Coales or Wood or any other Wares or Marchandise and this is not performed in the life of B. but after to his Executor it shall be to him as Executor and shall be Assets in his hands as well as the money recovered in dammages for not performing should have bene Of things accrued by remainder or increase IF a Lease be made to one for life the remainder to his Executors for yeares and he dieth this will be Assets in the hands of his Executors though it were never in the Testator as was in the later end of the late Queenes time resolved by three Justices the Lord Anderson onely being of a contrary opinion and there it was said that Cranmers Case wherein the contrary in effect was resolved was of little authority for that there were first two Judges against two till after Mounson changed his opinion upon a conceit that there the estate was by way of use which could make no difference like law where a Lease for yeares is by Will bequeathed to A. for life and after to B. who dieth before A. Although B. never had this terme in him so as that he could grant or dispose it yet shall it rest in his Executor as his goods and be Assets As for a remainder for yeares so in the Testator that hee might grant or dispose it at his pleasure no doubt can be thereof though the same fell not in possession to the Testator in his life time yet no scruple nor doubt can be but that this is Assets to the Executor even whilst it continues a remainder and before it falleth into possession because it is presently valuable and vendible Nor much of other nature to these are the Cases where the Executor Marchandizing with the goods of his Testator maketh gaine thereof So if the Sheepe or other Cattell of the Testator doe breed viz. beare Lambs Calves Colts c. after the Testators death even these which were never in the Testator shall yet be Assets and so the Wooll growing upon the Sheepe after the Testators death But there is one Case worth the consideration and worthy of some doubt as I thinke and that is this One leaveth to his Executor a Lease for yeares of Land worth twenty pound by yeare and the Executor keeping this in his owne hands one yeare after the Testators death doth make thereof thirty pound in cleare gaine above all charges now whether as to a Creditor this whole thirty pound shall be Assets or onely twenty pound and the Case simply thus put shall be understood of an occupying and manuring without any stocke of the Testators and then if the Executor did stocke it with his owne Sheepe or other Cattell as he must have borne the losse by rot or death so is it reason that if the manurants prove gainefull he reape the fruits thereof in recompence of his adventure and of his industry skill and good husbandry But if the Testators stocke of Sheepe and Cattell were as of necessitie or for the better advantage of the Testators estate continued upon the Lease Land then is it reason that the gaine or losse whethersoever of them God sendeth doe redound to the Testators estate Like Law as I thinke if an Executor finding that he cannot instantly after the Testators death let the Lease Land neare the value shall therefore buy seede-Corne and hire the plowing c. But it may be said that the Lease hath one entire valuation at the first upon the appraisement To this I answer first that the value upon the appraisement is not binding nor much respected at the Common Law if it be too high it shall not prejudice the Executor if too low shall not advantage him but the very value found by Jury when it comes in question whether the Executor have fully administred or have Assets or not is that which is binding Next I say that if a long Lease come to Executors of Land worth an hundred pound by yeare and no sale is made thereof by the space of a yeare or more now the terme continuing of the like value as at first it is no reason but this hundred pound raised the first yeare should goe towards the payment of debts and Legacies rather then any of them should be unpaid This thing I meane the knowledge of them are usefull two wayes viz. First to give light to Executors to discerne what unto them of right pertaines Next to shew unto Creditors and Legatees what and how farre things shall be Assets that is to say goods to enable charge and binde Executors to pay debts and Legacies For whatsoever any of these wayes commeth to the Executors from their Testator or is recovered by any of these Actions shall be in their hands Assetts the Cost and charges of recovering deducted CHAP. VII What manner of Interest an Executor hath in his Testators Goods and Chattels and how different from the common Interest they or others have in their owne proper goods THe Interest which an Executor hath as Executor in the Goods of his Testator is much different from the absolute proper and ordinary Interest which every one hath in his owne prope Goods as may well appeare in and by these points 1. Although if a stranger take away these Goods the Action of Trespasse for the Executor is of generall forme Quare bona sua cepit calling them his Goods whereas a man Outlawed in Debt c. or convict or attainted of felony or treason forfeiteth all his owne Goods yet these which he hath as Executor shall not be forfeited If a Villen be made Executor his Lord cannot take these goods though he may take all the Villens owne Goods and for taking such Goods or for a debt due to the Testator a Villen may sue his Lord. Nay if the Executor grant all his Goods some good
shall account the release of him severed is a good discharge to the Defendant as was resolved 48. Ed. 3. 14 15. but this is not a plenary judgement for nothing is recovered thereby but another judgement is to be had after the account which may be against the Plaintiffe so as this release came before any debt or duty adjudged What if the Defendant be had in execution at the suite of the Executor who prosecutes it and escapeth whether may the severed Executor discharge the Sheriffe or Jaylor by a Release I thinke he may not By that above it is plaine that if any one of the Executors Plaintiffes dye the Writ is abated onely where he so dying was before severed opinions have beene different as above appeares So also is it if one of the Defendants Execntors dye Yea if the Plaintiffe Creditor sue A. B. C. as Execuâ—ors where onely A and B. are Executors there by the death of C. the Writ abates or falles to the ground yet A. and B. as I thinke might have pleaded in abatement that they onely were executors traversing that C. was not Executor but the Booke doth not so resolve See 46. E 3 f. 9. 10. As A. and B. above might admit that Writ against them and C. So if the Writ or suiâ—e had beene against A. onely and he so admit it not pleading in abatement the recovery against him alone is good 9. E. 4. 12. One that is Out-lawed or attainted in his owne person may yet sue as Executor because this suite is in anothers right viz. the Testators But he that is excommunicate cannot proceed in suite as Executor because none can converse with him without being excommunicate as a Booke sayes Yet doth not this excommunication pleaded abate or overthrow the suite but make that the Defendant may stay from answering his suite untill the Plaintiffe be absolved and discharged from his excommunication CHAP. X. Of the Possession of Executors or their actuall Having 1. What shall be said so to come to their hands as to charge them 2. What shall be such a getting or going from them as to excuse them WE have before considered what things shall come to Executors and being come shall be Assets in their hands Now for that it is said in Reedes Case that an Executor shall not be charged with or in respect of any other goods than those which come to his hands after his taking upon him the charge of the Executorship Let us now examine what shall be said and accounted such a full and compleate comming to the hands of Executors as shall make them within the reach and charge of Creditors and Legatees viz. For the payment of debts and Legacies As touching debts due to the Testator it hath before beene shewed that untill Judgement and execution had they bee not Assets in the Executors hands Now then as touching other goods or chattels possessory which are of two kindes viz. reall and personall Let us put the Case thus The Testator at the time of his death hath a flocke of sheepe in Comberland Corne in the Barnes in Cornewall Bullockes in Wales fat Oxen in Buckâ—shâ—re Money Household-stuffe and Plate in London a Lease for yeares in Norfolke and his Executor dwelt at Coventry viz. farre from all these places what kinde of possession shall the Law judge this Executor to have in every of these instantly upon the Testators death and before he come where any of the things be either to see or seize upon themâ— In all the particulars above mentioned the Law is all one except the Case of the Lease for yeares which if it be of Land as is most usuall then because it is a setled and immoveable thing the Law doth not reach to it the foote of the Executor to put him in actuall possession for Possessio est quasi pediâ— positio untill himselfe or some for him do actually enter therupon Nor indeed need the Law helpe oâ— supply the want of actuall possession in this Case as in the case of moveables since Land cannot be carried away as goods may and therefore is not subject to purloyning or imbesilment as moveables are But if the Lease for yeares were of Tithes the Executor though in never so remote a place from them shall be instantly upon the seâ—ting out thereoâ— in actuall possession of them so as he may mainetaine an action of Trespasse against any stranger which shall take the Tythes set ouâ— though he nor any for him did ever befoâ—e pâ—ssesse any of the said Tythes or came neere unto them But if the case were of a Lease for yeares of a Rectâ—ry consisting not onely of Tythes but also of Gleabe Lands into which entry may be made as also Livery of season in it then it may perhaps be some question whether such an actuall possession in Tythes shall be given by the Law to an Executor neglecting to enter or not entrying into the Gleabe Land And so I leave the consideration of Chattells Reall Touching things Personall in which the Executor hath such an actuall possession presently upon the Testators death as that he may mainetaine an action of Trespasse against any stranger taking them away or spoyling them though he nor any for him ever came neere them whether yet this shall be such a possession in the Executors and such a comming of these Goods to their hands as to charge them with payment of debts and Legacies yea to make their owne Goods lyable instead of these is a point worthy of consideration And doubtlesse this throughly sifted will prove a case mischievous whether way soever the Law be taken for first it must be admitted that without the Executors laying his hands actually and particularly upon the Goods in the House or Fields of the Testator whether the Executor hath resorted he shall be said so in possession as to stand lyable unto the Creditors so farre as they extend in value though after others purloyne or imbesill them Now then if distance of place shall make difference where shall be the bound and limit of that distance and if the Executor may come at a strangers taking or possessing of the Goods it is mischievous to Creditors On the other side if it shall be said upon the Executors to answer for all the Goods whereof the Testator dyed possessed it will be mischievous for them and deterre them from taking Executorship upon them fince much purloyning may be even of money Iewells and Goods by Servants and others about the Testator or where these things be I thinke therefore that if without any fraud collusion or voluntary conniving on the part of the Executors they be prevented by others of laying hold on the Testators Goods so as that they may dispose of them especially if it cannot be knowne by whom they are so purloyned and imbesilled or if they be persons fled or insolvent that then
no remedy appeareth for the Conusee to have execution of the Goods of the Conusor but onely of his Lands If this should be thus it were a very mischievous case for many bound in Statutes have no Lands but Leases and goods of great value and if by their death their Goods and Chattells should be set free from this Statute and the Creditor without remedy the Law were very defective and it were so much the more strange in this Case because the Statutes of Actoâ— Burnell and Mercatoribus seeme to pitch principally upon Goods and to tend unto assurance betweene Merchants who usually are not Landed men But that the Law doth give remedy in such Case as well against the Goods as Lands of the deceased Conusor appeares by the resolution of late made in what Order and Precedence Statutes are to be satisfyed by Executors as after wee shall see Of Debts by Contract without Deed as Leases Paroll c. COntracts are of diverse kindes and we will begin with those in the realty as most worthy If therefore one be Lessee for yeares or for life without any Indenture or Deede as he may be and his Rent being behinde he dyeth now is the Executor lyable to the payment of this Rent without any Specialty for that his Testator if he had beene sued in his life time could not have waged his Law But if the Lessâ—e for yeares in his life time sell or grant away his terme or Lease although he still lye at the stake for the Rent to grow due after untill the â—essor accept the Assignee for his Tenant Yet if the Lessee dye his Executor shall not be charged for any Rent due after the death of his Testator But what if the Lessee doe not Alien or assigne his terme but dye thereof possessed and the Executor perceiving the Land not to be worth the Rent Waiveth the same Yet the Lessor will not enter thereinto nor intermedle therewith whether may he yet charge the Executor with the Rent during the terme I answer that if he have assets that is sufficient for payment of this and other debts he cannot Waive this Lease but shall be tyed to answer this rent though much more then the Land is worth for the taking of the Lease is much of the nature of an Obligation to pay money Yet because it is yearely Executory the Executor may Waive it in case his Testators estate will not supply and beare that losse But what if there be assets to beare this yearely losse for some yeares but not during the whole terme I think in this case the Executor must pay the Rent so long as this Assets will hold out and then must Waive the possession giving notice to the Reversioner and this I thinke he may doe well enough notwithstanding his Occupation of the Land divers yeares after the Testators death because that was not voluntary but as of necessity yet this I leave as a Quaere to be well advised of with good counsell Of contracts personall VVHere the Testator might wage his Law there the Action lyeth not against the Executor as hath beene touched and therefore he is not chargeable in an action of debt upon a simple contract as by reason of this or that to his Testator yea though it were the Inheritance of Land which was sold so as the sale were without Deed or though by Deed yet if no counterpart were under the hand of him to whom the sale was made And the custome of London to the contrary viz. that an Action of debt should be maintained against Executors upon a contract was held void at least no Good plea against other Creditors that such a debt was recovered against the Executor or paid by him as was towards the latter end of the late Queenes time resolved though in the beginning of her time it was a demurrer Yea though such a debt grew for the most necessary thing viz. meate and drinke which bindeth even an Infant to payment yet will it not charge the Executor of a man of full age but this is meant where the contract was onely by Word for where the Testator putteth his Seale to any Deede or Writing made upon such sale this is more then a simple Contract and taketh from the Vendee his wager of Law and so chargeth the Executor But if the Testator seale but unto a tayle or tally with scotches expressing a deâ—t this is no such Specialty as shall chaâ—ge Executors Yet in some Cases without any seale at all the Executor is chargeable But although no Action of debt lyeth against the Executor upon such a simple contract yet may the Creditor in that case maintaine an Action upon the Case grounded upon the assumption implyed though not expressed as now standeth resolved by all the Judges of all Courts at Westminster though heretofore there hath beene much difference of opinion thereabout And indeed thus the Executor is charged in matter for a simple contract though not in manner of a Debt but as for breach of promise making recompence in dammages instead of the debt And the chiefe reason for it is because the Testator could not have waged his Law in this action upon the case against himselfe though in debt he might Where the Testator retaineth servants in Husbandry or otherwise and dyeth there being wages due to these so retained the Executor is lyable to an action of debt for the same by reason that the parties were compellable by Statute thus to serve and therefore the Testator could not have waged his Law but in case of Servants not compellable as Wayters or Servingmen as wee call them no action of debt lyeth against the Executor for their wages though against the Testator himselfe it doth for the Contract is sufficient to charge him who made it See of account after Where Executors shall be charged without either Contract or Specialâ—y VVHere a Prisoner oweth money to a Jaylor or Keeper of Prison for his dyet or victualls and dyeth his Executor shall be chargeable for this debt because it is for the Common wealth to have Prisoners kept which cannot be without affording them victualls Also where one hath a Pattent or Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Crowne and delivereth it to him he then having money of the Kings in his hands if he pay not the same but dye his Executor shall stand chargeable with the payment thereof So for Arrerages of Account before Auditors if more then one but this is debt of Record in Law So if any Lord of free Tenants doth levy ayde of them for the marriage of his eldest Daughter and he dye before she be marryed she may recover this money by an action of debt against his Executor but
this is by vertue of a Statute There is a president in the Booke of Entries of an Action of debt against the Executor of an Heire by which it seemes that a man binding himselfe and his Heires and leaving Assets the Heire taking the profit becomes so a debtor that his Executor shall be charged And in the Register there is a Writ against the Executors of the Guardian of the Spiritualties of the Arch-Bishop of Yorke for the debt of B. who dyed Intestate and whose Goods came to the hands of the said Guardian viz. the Deane of Yorke In allowance whereof there is a note added of the like Writ brought in K. R. 2. his time and that then a president was alledged of such a Writ in King Ed. 2. his time against the Executors of an Ordinary and that they were inforced to answer unto it So is the opinion of Trew in the time of Edward the third But Ald. opposeth him Also the Rationabile parte bonorum by custome in some places is maintaineable for the Wife and Children against the Executor But no action of account lyeth against Executors except for the King More hereof tit wrong Of Covenants charging Executors VVE have already touched upon Covenants in part viz. where they be expressely for payment of money shewing them to be in Law bonds that is Writings Obligatory whereupon an action of debt may be brought as well as an Action of Covenant though the words of the Deed beare the sound and phrase of a Covenant Yet in some Cases no action of debt lyeth upon a Covenant to pay money as if A. Covenant that his Executor shall within a yeare or such a time after his death pay ten pound to B. now for that no action of debt was maintaineable against A. himselfe it lyeth not against his Executor but onely an action of Covenant as was held in the late Queenes time So if the Covenant be conditionall as thus that if C. doe not pay to B. ten pound then A. will pay it and so also perhaps if the Covenant be in the distinctive viz. to doe such an act or to pay ten pound now if the act be not done yet no action of debt lyeth for the money but onely an action of Covenant But now let us come to the Cases of meere Covenants and see which of them will charge an Executor and which not If a Lessee for yeares covenants to repaire the buildings or to pay the Quit-rents issuing out of the Land let there is little doubt but the Executor to whom the terme commeth must as well as his Testator performe that Covenant although he did not covenant for him and his Executors and yet of these cases doubt hath beene and touching the latter viz. of paying Quit-rents divers Justices in Queene Maries time were of opinion that it was a thing so personall that it dyed with the person and did not charge the Executors Nor is there any contrary opinion expressed in the Booke And since that time viz. towards the end of Queene Elizabeths raigne in the Action of Covenant betweene the Deane and Canons of Windsor and Hide touching reparations at the first much opinion was that onely the person Covenanting was tyed to this performance but after it was resolved that that Covenant did runne with the estate and so both Executor and Assignee bound to performance but in that case it was said by Popham Chiefe Justice that if the Covenant had beene to doe a Collatterall act neither the Executor nor the Assignee had beene tyed thereby and therefore where a Lessee for yeares covenants within such a time to build a new house upon the Land and dyes before that time expired I doubt whether the Executor be bound to performe this or not although it doe concerne the Land let so as perhaps the Rent or Fine was the lesse in respect of this charge of new structure or building which is a great reason that the Executor though not named should be tyed to the performance But if the Covenant had been to build a house elsewhere then upon the Land let or to doe any other collaterall thing not pertinent to the Land lâ—t it is cleere the Executors were named to performe it and yet in those cases if there were a breach or non-performance in the Teâ—stators life time as that the time of performance were expired before his death then it is cleere the Executors were bound to yeeld recompence by way of dammages recoverable in an action of Covenant as both Shelley and Fâ—tzherbert agreed and so also did the Lord Popham agree in the said case of Hide as I find in my owne report of that Case though in the Lord Cooke reporting onely the point in question that be not mentioned Now let us consider of the case where there is no expresse Covenant at al so much as for the Lessor himselfe but onely a Covenant implyed or Covenant in Law as we call it As if Lessee for life make a Lease for yeares and dye within the terme so as the Lessee is evicted by him in reversion or remainder In this case it was resolved in the late Queenes time by three Justices viz. Walsh Browne and Dyer that by this Covenant in Law the Executors were not chargeable and in the same case the Lord Dyer sets downe another resolution after to the same effect but Master Serjeant Bendloes reporting this latter case to be of a Lease made by Tenant in tayle viz. before the Statute of 32. Henry 8. or not warrantable by it sets downe the opinion contrarily viz. that the action was mainetaineable against the Executor This may serve for instance the like being in any other case where the Lessor hath not a good and a firme title but perhaps subject to a Condition or other eviction so as the Lessee cannot injoy the Land according to his Lease But this must be so understood that no eviction or breach of Covenant is in the life of the Testator himselfe for if that be there is no question but the Executor stands chargeable and therefore if one make a Lease of Land by Deed wherein he hath nothing this Covenant is perhaps presently broken and though the Lessor dye before an action of Covenant brought it will be mainetaineable against his Executor though no expresse Covenant This is usefull to be knowne though in these dayes there be few Leases so made without expresse Covenant and the Executors also named And where there is a speciall Covenant in expresse words it doth qualifie the Covenant implyed so as although Words of demise and grant tye the Lessor to a generall Warranty of the title against all men yet it being after covenanted that the Lessee shall enjoy against the Lessor and his Heires or against all claiming under him or his Ancestors Now no eviction by or under any other title giveth cause of Action or
debts should thus be preferred before any subjects viz. for that the treasure Royall is not only for sustentation maintaining of the Kings household but also for publick services as the warres c as appeares by the statute 10. Rich. 2. cap. 1. And therefore it is as I conceive that Bracton saith of the treasures or revenues Royall Roborant coronam they doe strengthen or uphold the Crowne And for the like reason as I think did God inact touching the possessions of the Crown that if they were given to any other then the Kings owne Children they should revert and come back to the Crowne the next Jubilee which was once in fifty yeares sed de hoc satis But this priority of paiment of the Kings debt before the debt of any subject is to be understood onely of debts by or upon record due to the King and not of other debts If any ask how the King should have any debts which shall not be of record since by the statute 33. of King Hen. 8. cap. 39. it is inacted that all Obligations and specialties taken to the use of the King shall be of the same nature as a statute staple To this I answer that there may be summes of money due to the King upon wood sales or sales of Tinne or other his minerals for which no specialty is given so also of amersements in his Courts Baron or Courts of his Honours which be not Courts of record The like of fines for coppyhold states there So of the money for which straies within the Kings Mannors or liberties are sold Also as the law hath lately beene taken and ruled in the Exchequer even debts by contract due to any subject are by his outlawry or attainder forfeitable to the Crowne Yet neither these nor those due to such person outlawed or attainted by bond bill or for arrerage of rent upon lease is or can be any debt of record untill office thereupon found for although the outlawry or attainder be upon record yet doth it not appeare by any record before office found that any such debt was due to the person outlawed or attainted Thus are not these debts to the Crowne to have priority of payment before the subjects debts though the Kings debts of record are so to have so that if a subject to whom the testator was indebted by specialty sue for this debt the executor must pleade that the testator dyed indebted thus much to the King by record more then which he left not goods to satisfie if the truth of the case so be for if there be sufficient to satisfie both then the subject creditor is not to stay for his debt till the Kings debt be levied And if the subject creditor sue execution upon a statute so that the executor hath no day in Court to pleade this debt to the King then is the executor put to an audita querela wherein he must set forth that matter and so provide for his owne indempnity But what shall we say of arrerages of rent due to the King surely where it is a feefarme rent or other rent of inheritance I see not how it can come under the title of debt since for it no action of debt is maintainable so long as the state continueth in him to whom it grew due and I find that the Lo. Dyar M. 14. Eliz. said that the King could but onely distraine for his rents and not otherwise levie them of lands or goods and that the King by his Prerogative may distraine in any other lands of his tenant our bookes tell us but no more Yet I know it hath beene otherwise done of late in the Exchequer which if it have beene the ancient and frequent use of the Exchequer it will stand as law though unknowne to the Lo. Dyar Now rent upon a lease for yeares differeth from the other since for the arrerages thereof an action of debt lyeth but how can either of these be debts of record when the not payment may be either in the Court of Exchequer or to the receiver generall or particular how then can there be any certain record of the not payment so as to make any certain debt upon record Wee know statutes have beene made to make the lands of receivers subject to sale for satisfaction to the Crown and besides that some ancient Patents direct the payment of Fee-farmes into the hands of Sheriffes the statute of Westm 1. cap. 19. provides remedy for the King against Sheriffes not answering the debts of the Crown by them received so as the Kings Farmer or debtor may have paid his rent or other debt and the Crowne have not yet received it Of Fines and amercements in the Kings Courts of Record there is no doubt but they are debts of record Come we now to the debts of subjects and first those of record touching which I shall not be able to hold so good a method and so well to handle things by parts as I would for that the parts so stand in competition one with another for precedencie as that they must of necessity thereabout conflict and interplead one with the other and contest one against the other yet for the Readers better ease and ability to finde out that which may concerne him in his particular case I will in the best sort I can single out these things into severall parts and place them in severall roomes or stations First considering how it shall stand between one judgement and another had either against the executor or testator Secondly how betweene judgements and statutes or recognizances Thirdly how betweene recognizances and statutes Fourthly how betweene one recognizance and another Fifthly how betweene one statute and another adding to each some observations incident Now next to the debts of the Crown are judgements or debts recovered against the testator to have priority or precedencie in payment as being of an higher nature or more dignity than any other for that statutes and recognizances though they make debts upon record yet are they begotten but by voluntary consent of parties whereas in every judgement there hath beene a course and work of Justice against the will of the defendant as is presumed and this in a court of justice and the records of such judgements are entred in publike rolls not kept or carried in pockets or boxes as statutes and untill inrolment recognizances are Therefore executors must take heed that judgements against their testators before debts any other way if they have not sufficient for both be first satisfied lest they draw the burthen of this debt upon their owne backs Now their way to help themselves being sued or pursued for other debts is the same before delivered touching debts upon record to the Crowne viz. by plea where they may plead as in Sâ—ire facias upon a recognizance or suit upon band and by Aâ—dita querela where they cannot plead as when execution is sued
to the one and by quick confession of the others action for he is not bound against his will to stand out in sute and expend costs where the debt is cleere nor is this coviâ—e but lawfull discretion which conscience will also approve some good consideration inducing Nay after sute commensed yet untill the executor have notice thereof he may pay any other creditor and then plead that he hath fully administred before notice Nor is the Sherifes returne of summons or distres sufficient cause of notice for the summons might perhaps bee upon his land but if it were to his person it is notice sufficient and then to save himselfe hee must say that he was not summoned till such a day before which hee had fully administred yet doubtlesse the executor may be arrested at the creditors sute in some sort which yet shall bee no sufficient notice of this debt As for the purpose if hee bee sued by Latitat out of the Kings bench this supposing a trespas gives no notice of a debt so also of a Subpaena out of the Exchequer but the originall returnable in the common plees expresseth the debt and so in some sort doe the proces thereupon And therefore it seemes by some bookes that if it bee laid in the same County where the executor dwels he must take notice of it at his owne perill But this I take not to bee Law nor is there any great opinion that way and although to make it more cleere the executor in King Henry the fourth his time estranging himselfe from notice of the sute before payment to others did alledge that the action was layed in a forren Country that is no great proofe that if his abode had beene in the County where the action was brought hee must have taken notice but thus it was cleerer and a little surplusage hurts not Now betweene a debt by obligation and a debt for rent or dammages upon a Covenant broken I conceave no difference nor any priority or precedency but it is as the executors discretion to pay first which he will as if all were by bond So also of rents behinde and unpaid as I conceave but touching them principally intending rents upon leases for yeeres divers considerations are to be had and some distinctions to be made as first betweene rent behind at the time of the testators death of which that before said is to bee understood and that which groweth behind after next betweene sute for the rent by action of debt and by distres and avoury As to the first difference if the rent grew due since the testators death then is it not accounted in Law the testators debt for onely so much is in Law accounted assets to the executor as the proffits of the lease amounted to over and above the rent so as for that rent so behind the executor himselfe stands debtor as hath beene resolved and therefore hee is suable in the debet and detinet whereas for rent behinde in the testators life and all other the debts of his testator hee must bee sued in the detinet onely Hence it must follow as it seemes that an executor sued for debt upon bond or bill cannot except in some speciall cases pleade a payment or recovery of rent growen due since his testators death though of rent behind at the time of his death it bee otherwise And yet heere againe another difference or distinction is to bee taken viz. where the proffits of the lease exceede the rent and where the rent is greater then the yeerely value of the proffits for even there as else where is shewed the executor if hee have assets is tyed to the holding of the lease and payment of the rent and consequently doth so much of that rent as exceedes the yeerely profit stand in equall degree the testators debt with other debts by specialty and yet againe to reconsider this point what if the debts of the testator by specialtie payable presently at his death or before the time that any rent can grow due upon this Lease shall amount to the full value of the testators goods may not then the Executor though hee doe not pay those debts before the rent day for that would make the case cleere waive the terme for if he may then happilie iâ— he doe not so but shall by payment of any of this rent want goods to pay any part of the debts by specialtie it may lie upon himselfe and his owne goods as happening by his owne default But on the one side it may bee said that hee could not waive it so long as hee had assets because thereby hee stood equallie liable to pay that debt being once due as the other debts by specialty On the other side it may be said that though the debts for rent and upon bond shall bee admitted to bee in nature equall yet the case being put of rent not due at the time of the testators death it was not then a debt nor duty whereas a Bond makes a present debt and duty though not presently payable the day of payment being not yet come so as this latter is discharged by a release of debts or duties and so is not the former So to leave that point unresolved let us next see whether in some case though the rent exceede not the yeerely value of the Land yet even that payable after the death of the testator may not stand in most part if not wholie upon the testators score as his debt as well as if it had beene payable before his death Posito then that the whole or halfe yeeres rent is payable at the annunciation of our Lady and that the testator dieth two or three daies or some like short time before that feast now certainlie should the Law bee unreasonable if it should lay this debt upon the executors shoulders in respect of those few winter daies proffits which he tooke But surely since the taking of the proffits induceth the Law to lay the rent upon the Executor as his owne debt therefore as where the Executor had the proffits for the whole yeere or halfe yeere except some few daies incurred in the testators life time those few daies will bee unregarded according to the rule De minimis non curat lex the whole rent shall lie upon the Executor as his owne debt So on the contrary part where the whole yeere or halfe yeers proffit except some few daies incurred after the testators death the rent becomming payable so instantlie after the testators death must in reason lie wholy upon the testators estate as to me it seemes What if to this I adde that the testators cattell wherewith the ground was stocked doe depasture and devoure the proffits all the time after the testators death till the day of payment of the rents Nay if the rent were payable at Mich. and the Anâ—unc and the testator dieth a few daies after Mich. the rent being of or neere the value of
the Land it will then bee haâ—d that the Executor shall for this winter proffit pay the rent out of his owne purse especiallie if the whole yeeres rent bee payable at that one day as in some cases it is or if the whole yeeres proffits were taken in the summer as in case of a lease of tithes it is so also of medow grounds usually drowned in the winter So if the lease bee then to end not having a summer halfe yeere to succeede and make amends for the winter or if the winter halfe yeere bee the latter halfe the lease beginning at Lady day so that there is but a summer for each winter following and not any for the winter passed Of like consideration with these is the case of a lease of woods for a rent which being fellable but once in eight or nyne yeeres now if the lessee having made the last sale and felling before his death the Law should cast the rent upon the Executors owne estate for the time future it should lay losse upon him which is against reason and contrary to the nature and disposition of the Law even in this particular As appeares by this that shee enables an Executor to pay himselfe before any debt of equall nature so as shee more tenders an Executors indempnity then any other Creditors therefore I thinke that with and upon the differences above shewed even rent growen due after the testators death may in some cases bee the testators debt payable equally with debts by bond But here I conceive that if the executor were in such case of destitution of assets as might justifie his waiving of a lease over-rented hee then may waive these termes residue because for the future the profits will come short of answering the rent though at the first and so in the totall the profits did exceed the rent And if for want of waiving where he might this rent fall upon him the paiment thereof would be no excuse against another creditor nor as to him be a good administration for Ignorantia juris non excusat This is pertinent to our present consideration which debt may with safety be paid leaving another unpaid and the hazard of executors by ignorance of the Law hath been a principall motive to my writing these Discourses in English Hitherto we have only considered as I think of rents as they be recoverable by action of debt Now let us see if there may not be somewhat different considerations touching distraining for rent and so comming to recover it by avowrie Put wee then the case that an executor hath fully administred in payment of debts by bond and after the lessor or revertioner commeth and distraineth for arrerages of rent due in the testators life can the executor in bar of the avowrie plead fully administred as hee might have done if an action of debt had been brought for these arrerages doubtlesse I think no nothing shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease except the land come to the King upon whose possession no distresse can be taken I think therefore that the executor who paid out of his own purse to the value of this lease for to I intend the case and else could he not have fully administred as in the case was put he should I say have abated in the price and valuation of the lease as well the arrerages of rent as the rent futurely payable both being equally leviable upon the land and if he so have done he is no loser by payment of this arrerage but if trusting to the power of an executor and to the plea of fully administred hee did not so but disbursed in respect of the lease to the full value without such abatement he must beare the losse of his owne ignorance He might also another way have helped himselfe viz. by payment of that arrerage leaving other debts by specialty unpaid And what if suits were presently commensed upon the testators death before hee could make payment of the rent behind whether might the executor then plead this debt for rent as hee might a debt by judgement or statute and surely me thinkes it probable that he might because it is a debt from which hee cannot be freed by payment of the other debts sued for by specialtie If the revertioner would also commence suit before judgement had for the creditor by specialty then might the executor helpe himselfe by confessing his action first but this perhaps the revertioner would not conceive safe for him since that way the others might get judgement before him and so he might lose both his suit and his debt wheras holding himselfe to the course of distres the lease continuing he hath land at the stake for his debt What if he distraine and avow may not now 〈◊〉 executor pay him or at least confesse his â—â—tion or avowry so as he first having judgement may first be satisfied Surely after suite commenced I see not how the creditors by bond can so be prevented at least without judgement had for the rent yea though such a judgement be had yet because the judgment in that case is not that hee shall recover the summe due for rent but only that he shal have a returne to the pound of the cattell distrained for the rent it is questionable whether the paiment thereupon of the rent shall prevent the judgements after had in the suits upon bonds But I thinke it shall because although it bee not an expresse recovery of the rent yet is it such a judgement compulsary for the same as makes the payment inevitable and of necessitie And where before we have made the question only between the said rent-debt and the debt by obligation let us now put the case between the rent-debt and the debt by statute or judgement If then the lessor after death of the lessee distraine for the rent behind part of the testators cattell and after there comes a writ of execution upon a judgement or statute of the testators whether shall these beasts in the pound for rent be delivered in executioÌ„ or not admitting that without them there be not goods sufficient for satisfaction of the judgement or statute And surely I thinke they cannot be delivered in execution First for that they are in the custody of the law as in String-fellowes case though there the Kings preroga-time overtopped that point yea so I thinke though they be replevied for that they are to be returned to the pound if judgement passe for the avowant to which purpose securitie is given so as they are but in tâ—e case of a prisoner bailed who still is in some sort in custodie Secondly for that this rent incident to and descendible with the reversion breeds a debt of a reall nature and so of more dignity and worth than debts personall Thirdly for that the land let as in a sort debtor stands chargeable with this distres
from the very time of making the lease as either by a contract real of quid pro quo or rather by an operation of law or legall constitution or ancient custome of the Realme without any contract of persons Lastly for that the lessor doth not distraine the cattell therefore or in that respect for that they are or were the goods of the testator but for that hee found them levant and couchant upon the land which must afford his rent or a distrâ—sse for it if behinde so as if they had beene any under tenants or strangers Cattell they might have beene distrained Some may perhaps object this reason why these impounded cattell should be delivered in execution viz. for that where otherwise the creditor by statute or judgement should lose all or part of his debt yet by this releefe done to him shall not the lessor lose his rent for that he may at any time after distraine any goods or cattell found upon the ground at any time during the continuance of the lease But here besides the point of delay and stay for this rent which to many is the sole meanes of maintaining their households and families this further is considerable that perhaps the lease may be neere expiring perhaps so highly racked and rented even to or above the value as that the executor having his testators stock taken from it and him by execution will not stock it any more and so the land lying fresh if the lessor shall lose the benefit of his former distres he shall be perhaps without remedy for his arrerages of rent And if the case were of a distres for rent behind after the testators death I conceive though not so strongly for most of the reasons abovesaid that the law would be all one as in the other case for though in this case respect shall not be had to the executors losse upon whose goods the law casts this debt though not the other yet here the point of losse must fall either upon the lessor losing his distresse or upon the other creditor by specialiy or record losing wholly or in part his debt And in respect of this locall tye upon this land for paiment of the rent whereto even the fealty of the lessee and tenure of the land bindeth him and it I think no act that the lessee can do by entring into bonds or statutes or having judgements against him can hinder the lessor or reversioner from taking his remedy upon this leased land for the rent therefore due but rather any other creditor shall be a loser in his debt Doubtlesse iâ— in barre to the avowrie for this rent due either before or since the testators death the executor will plead that the testator was indebted a thousand pounds by statute recognizance or judgement which is more then all his goods amounted unto it will be no good plea but may be demurred upon What if hee plead so much debt of record to the Crowne surely I doubt whether this plea will be allowed in any other Court then the Exchequer yet if these arrerages of rent shall be levied upon the land so as either the executor must pay it or lose the cattell distrained by a returne irreplevisable and then shall not have sufficient to satisfie the debt to the Crown I see not how he shall well escape when pursued in the Exchequer to make up this Crowne debt out of his owne purse which is hard For this we may pitch upon as a Maxime and principle that an executor where no default is in him shall not be bound to pay more for his testator then his goods amount unto Againe it is a rule that where nothing is to be had viz. justly to be had the King loseth his right and our bookes tell us that the Kings Prerogative must not do wrong Potestas ejus juris est non injuriae nam potestas injuriae non est Dei sed diaboli On the other side it may be said that if land leased come to the King by grant outlawry or otherwise the rent reserved cannot be distrained for and therefore is it not very unreasonable nor incongruent that the Kings interest for his debt should make the distres of a subject to stand by and give place This therefore among other of the premises do I leave as a quaere nor is it altogether unprofitable either for an executor or creditor to know what wayes and passages what cases and contingents be doubtfull and hazardous And if in these unbeaten paths where our bookes and relations have held me forth no light expresse or particular I have erred in mis-resolving or missing to resolve I hope I shall without difficulty obtaine pardon Now let us consider of assumptions or promises made by the testator upon good consideration the performance whereof or making recompence and satisfaction for not performing doth lye upon an executor as before is shewed These therefore are to come behinde and give place unto all the former so as an executor this way or for these sued may pleade debts by specialty rent c. amounting to the whole goods And yet these debts by contract or assumption expresse are to be satisfied before legacies be to be had First because by the common law of the land those are recoverable and so are not legacies next because as our bookes speake it concernes the soule of the testator to have aes alienum all duties and debts to other men satisfied before the debtors voluntary gifts or bequests Also these debts by assumption or simple contract are to be satisfied before the reasonable part of the wife or children to which by custome in some Counties they are intitled see 21. Ed. 4. 21. 2 Ed. 4. 13. 2. Hen. 6. 16. And note that in such an action upon the case it is not of necessity to lay or set forth in the declaration that the defendant hath assets to pay all debts by specialty and this also but if there want the defendant must alledge that in his excuse for else it shall be presumed that he hath assets So also in an action upon the case grounded upon the executors owne assumption to pay his testators debt and yet as the L. Cooke conceives and upon good reason as to me it seemes if the executors so promising had not assets sufficient in his hands to pay this debt promised he pleading non assumpsit may give that in evidence for then the consideration faileth as also if there were no such debt due since the plaintife could not have recovered if he had sued and so his forbearance to sue was no valuable consideration Chap. XIII Of Devastation or Wasting THat which S. Paul of dispensers spirituall who are as it were the executors of the last will and testament of our Saviour Christ doth say or enjoyne viz. that they must be found faithfull The same is required of these lesse or inferiour dispensers the executors of mens Wils and
of the testators goods if so much in value of them were in the defendants hands and if not then the costs only of the goods of the executor And this surely is the righter and more just way for there is no reason that upon on a promise more then upon a bond the law should cast the whole debt upon the back and state of the executor But perhaps the two judgements may be reconciled thus the later was given upon a verdict non assumpsit being the issue and there the Iury assessed damages in certain viz. two hundred fifty three pounds with the costs So as here the judgement was compleate and full viz. to recover the said summe but in the other case the judgement was had upon a demurrer so as the damages not being knowne it was generally that the plaintife should recover his damages against the defendant Sed quia nescitur quae damna c. because it appeareth not to the Court what the damages were therefore a writ was awarded to inquire of damages upon the return whereof executed the judgement was fully and compleatly to be given of a summe in certain which second judgement it appeares not by the book in what manner it was entred and therefore might perhaps bee then agreeable with the other And that the said first judgement before damages inquired of is not a plenary full judgement but an award of judgement hath beene divers times resolved and that therefore any defect and insufficiency in the declaration may be shewed time enough after the first and before the second judgement Yea if the plaintife dye before the second judgement though after the first the action falleth to the ground So if the defendant dye otherwise of death after full judgement But this notwithstanding and howsoever it there were done upon the second judgment me thinks it were righter and fitter that the first judgement should expresse that the damages should be had and levied out of the testators goods for whom and in whose right the executor is sued Another case there is wherein the judgment must be as it seemes against the executors own goods viz. in an action of covenant for a breach of covenāt since the testators death for so was it held both by all the Judges of Common Pleas except the L. Dyar and by the pregnotaries in the late Queenes time where the case was of an house upon the lease negligently burned in the executors time for which damages only were to be recovered And sometimes where the executor himselfe is so to beare the burthen I finde the judgement entred that the summe recovered shall be levied of the lands and goods of the executor Chap. XVII Of women covert Executors THere being two kinde of persons who have some disability upon them viz. Femme coverts or married women and infants touching whom we find in many places question and disceptation in our bookes We will consider of them by themselves or apart from others yet not joyning them together neither but each by himselfe separately First therefore of Femme coverts touching whom we will consider these three things First whether they may make Wills and executors with or without their husbands assent and how where and in what cases Secondly whether they may be made executors without their husbands assent or how their husbands may hinder it Thirdly what acts in execution of the executorship they may doe without their husbands or their husbands without them A woman married or femme covert wee know is Sub potestate viri cui in vita contradicere non potest as saith the writ given by the Law to the wife for recovery of her land after her husbands death being aliened by him Therefore it is that Judges when a woman is to acknowledge a fine of any land doe examine her apart from her husband to know whether she bee willing or come to doe it by the compulsion of her husband It is therefore hard for her to have freedome of will and consequently freedome to make a will Besides all her moveables or goods personall which shee had at the time of her marriage otherwise than as executrix or administratrix are by the Law totally devested out of her and setled in the husband as fully ipso facto upon the very marriage as any other that were his owne before Of these therefore she can make no disposition no more than of other her husbands goods But in case shee doe by will bequeath them although the will and gift be void yet if the husband as the case was in the time of Edw. the second do after his wives death consent to this her will gift by delivering of the goods bequeathed after her death or assenting that the legatee take them by vertue of such will and gift this amounteth to a new gift by the husband If a woman have a lease an estate by extent a wardship the next avoydance of a Church or other chattell reall these are not devested out of her into her husband by marriage but in case she over-live him they continue to her as before no alienation or alteration having been made by the husband who had power to dispose of them by gift in his life-time though not by his will yet such a woman in her husbands life-time could not of or for these things without her husbands assent make an executor or will but she dying before him they would by the operation of law accrue to him And here then observe a case though not frequent yet full of mischief when it happens Suppose that a woman indebted a thousand pounds and having leases and moveable goods to the value of three thousand or foure thousand pounds marrieth with I. S. and then dyeth before the debt bee recovered against her in this case the husband shall have and goe away with all this value of his wife and is not in law lyable to pay one penny of her debts because hee is neither her executor nor administrator What the Chancery could doe or rather what the Lord Chancellor or Lord Keeper would doe in this case I will not take upō me to say or determine Another sort or kind of goods or rather interests a woman may have viz. debts or things in action which as the former are not devested out of her by marriage into her husband nor yet can shee thereof make an executor without her husbands assent although they be one degree farther from the husband than the said chatels realls for that though th◠husband doe overlive the wife he shall not be intitled to them as to the former But if his wife make him executor as she may or if after her death hee take administration of her goods then as he is thereby intitled to them so is he lyable also to pay her debts out of the same when he shall have received them Lastly Dato that a woman covert
must needs bee a dying for part testate and for part intestate As for the second point viz. wives or women coverts being made executors and so having the office of executorship put upon them against their husbands will there hath also beene diversity of opinions In the time of King Edward 1. Brab Justice saith shee may executor without her husband and the administration shall bee delivered to her onely And I thinke he meant that this might bee without the consent of her husband or whether hee would or not for so is it said in the time of King Henry the seventh to bee the Law spirituall and indeed in Courts spirituall no difference is made betweene women married and unmarried for ought I can finde there a wife sueth and is sued alone without her husband hee intermedleth not nor is intermedled withall touching the things pertaining to his wife But at the common law it is otherwise and there as Bryan Chiefe Justice saith a wife without the assent of her husband cannot be executor he meaning thereby that the husband may oppose and hinder it for such an one may be named executor in and by a Will without the knowledge of her husband let us then see how after the death of the testator the husband can hinder her proving of the will or intermedling to administer since it may be a matter both of much trouble and danger to him to have the executorship fasten upon his wife and consequently upon himselfe On the other side it may be a benefit and advantage to the husband and therefore we will also consider whether the husband may though his wife would refuse assume the executorship and fasten it upon her The testator therefore being dead and fame or common bruit carrying it to the Ordinary that the wife of I. S. is made executrix if she come not in gratis or voluntarily to prove the Will Proces or a citation is to be sent out of the Spirituall Court against her to enforce her comming in to take on her the executorship She comming may cleerely as well as any other person especially if her husband concurre with her therein refuse this office trust and charge so as if there be no other executor named the Ordinary must commit the administration If she should not come and appeare she should be excommunicate as I take it notwithstanding any allegation or intimation by her husband of his unwillingnesse to have her take upon her the executorship But suppose she doth come into Court and offers her selfe ready to take the executorship upon her and on the other side her husband expresseth his disassent therunto praying that she may not have the execution of the Will to her committed what will then be done This I confesse pertaines to another learning and not to that of our profession but forasmuch as I find that in the Courts spirituall a wife standes in the same plight and state as a woman sole the husband not intermedled with all in the affaires of the wife Therfore do I conceive that in that Court the husbands refusall wil not be of force to hinder the committing of the executorship to the wife not refusing at least if there come not a prohibition to stay the Spirituall Courts such proceeding but whether a prohibition be in such a case to be granted or not as I find no resolution in my books so wil I not take upon me to resolve This stands cleere in the rules of the law of England that the wife is under the husbands power and cannot contradict him in pleading and doing other acts even touching her own Freehold nay she cannot take lands nor goods by gift or conveyance without her husbands assent as the law hath been and for ought I know is taken But if once the Will be proved and the execution thereof committed to the wife though against her husbands mind and consent I think it will stand sirme and the husband and wife being after sued cannot say that she was never executrix and I doubt whether the wife administring without the husbands privity and assent although the will be not proved do not conclude her husband as well as her selfe from saying after in any suit against them that she neither was executor nor did ever administer as executor Yet perhaps this administration by the wife against her husbands minde will as against him be as a voide act else cannot I see how Brians opinion before cited viz. that the wife shall not be an executor without or against her husbands mind can be law On the other side if the husband of a woman named executor would have his wife to take upon her the execution of the Will and to prove the same but she will not assent thereunto wishing perhaps that gaine and benefit rather to some of her kindred by way of administration then to her owne husband by her executorship as sometimes wives accord not well with their husbands in this case I think the Court Spirituall will not fasten the executorship upon the wife against her will But dato that the husband though the Will be not proved doth administer as in the wives right but against her minde and will shall she be now hereby bound and concluded so as after she cannot decline or avoid the executorship and surely I think that during her husbands life she stands concluded at the common law for that there she shall not be nor can be sued alone as executor and then being sued with him she must joyne in plea with him viz. that she neither was executor nor administred as executor and then this act of her husbands given in evidence will as I take it cause that the verdict be found against her not so after her husbands death then she may refuse as the Lord Dyar saith and citeth as resolved These things I thought good to offer to consideration and so leave them without resolution Difference perhaps may be where a woman so made executor taketh an husband after the testators death before either proving or refusing to prove the Will and where she is made executor during the coverture as there is in case of a discent of her land to the heire of a disseasor for when there is upon her such a state of election she marying before her resolution or determination doth upon the matter deliver it into the husbands hands not so where it first findeth and falleth upon her in the state of coverture if the husband were indebted to the Testator this making of the wife executor is as I take it a release in law as well as if she were the debtor but if after the testators death she do marry such a debtor it is a devastation The third Point Touching the administration or execution of the Office of executor by a Femme covert and her husband WE will now come to admit the execution of the will assumed by concurrent consent of husband
and wife and the will proved with both their likeing in the wives name and examine what acts the wife of her selfe is able to do and what her husband without her It hath beene conceived by many of old and by some of late that if a Femme covert or maried woman executrix release a debt of her testator or give away the goods which she hath as executor or deliver a legacie bequeathed it was firme and good and on the other side that her husbands gift or release was of no value for that the administration or execution of the will is committed to the wife only and some have gone so farre as to say that she may sue or be sued without her husband in the Courts of Common Law I meane for in the Spirituall Court it is true the husband is not joyned with the wife in suit but the law is doubtlesse in all those points contrary as not only some opinion also was of old viz. in the time of H. 7. but also hath beene in the late Queenes time resolved for otherwise if the wives gift or release should stand good her act might exceedingly endamage her husband and make his goods lyable to the creditors the testators state being wasted by the gifts or releases of his wife Wherefore it was held in the said late case that unlesse due payment were made to such women covert executors their releases or acquittances be void and so also their gifts and grants yea it was then held that the husband of the wife executrix may give goods or make releases of debts at his pleasure But doubtlesse by mariage neither are the goods though personall which the wife hath as executor devested out of her and setled in her husband as her own goods are nor if she dye shall they acrue to the husband if no alteration were of the property but shall go to her executor or to the next of kin being administrator of her testator if she have no executor and so was it held in the first yeare of Queene Mary Yea though for any other goods which the wife had in her owne right before marying the husband alone without naming the wife may maintaine an action of trespasse yet touching such goods as the wife hath as executor the action must be brought in the names of the husband and wife to the end that the damages thereby recovered may accrue to her as executor in lieu of the goods So also must the replevin for those goods be in both their names But although the husband be thus named with the wife yet principally is it the suit of the wife and therefore in such actions or in debt by husband and wife she being executor if it come to triall by Jury the husband being an alien yet shall he not have triall per medietatem linguae or alienigenarum that is by halfe aliens as in other cases Cases where an alien is party to a suite is to bee had And whereto a wife made executor power is given to sell land of the testators shee may sell to her owne husband as was resolved in the time of King Henry the seventh where the Feoffees it being land setled in use were committed to the Fleet for that they would not execute an estate to the husband according to the wives state But of this I much marvell since the Law intends the wife so under the husbands command and subjection that it holds not her disposition of land to him by will free nor therefore of force and how shall this then be conceived to be but a partiall sale yet volenti non sit injuria and he that will put such power into the hands of a woman under coverture doth in a manner subject it voluntarily to the husbands will And it hath been held by some that even an infants or femme coverts conveyance in such case of necessitie should stand firme and unavoydable because of the condition expresse or implied that the state should bee void if no such conveyance made Touching infants and their making or being made executors BEing now to consider of disability by age for want of yeares in persons making or being made executors Let us first take view of the severall ages of men and women to severall purposes materiall in the lawes judgement and respect And first touching a woman Wangford in Henry the sixth his time shewes and other books approve that she hath sixe severall ages respected in and by the law As first the age of seven yeares for her father to have aid of his tenants to marry her Next nine years to deserve dower that is that in case she be of that age at the time of her husbands death shee shall be endowed but not if she be any thing under those yeares the Law being Physically informed that a woman at those yeares may conceive a child but not under them But of somewhat different opinion was as it seemes the Parliament in the late Queens time when it was made felony to have unlawfull carnall knowledge of any woman child under the age of ten yeares it being then conceived as I thinke that no such could consent The age of twelve yeares is a womans time for assenting or disassenting to marriage in more tender yeares had For so it appeares by divers bookes although Mr. Littleton have here no distinction between male and female The age of fourteen years is a womans time to be in wardship or not so as if she be any thing above those years at the time of her ancestors death she escapeth wardship The age of sixteene yeares is her time of comming out of wardship being once fallen under it for although had she beene full fourteene she had escaped it yet not so being at the time of her ancestors death her wardship lasteth till sixteen yeares except the Lord shall sooner marry her And lastly the full age of a woman whereby she is inabled firmely and unavoidably to make grants or conveyances is one and twenty yeares as well as for the male before which time be it that she being sole make a feofment or other conveyance or being married alien her land by Fine and her husband of fuâ—l age joyne with her yet is it infirme and avoydable Now of the male or man the first age materiall and setledly resolved on is twelve years for at that time each male is at the Leet to sweare his fidelity to the King this women doe not and therefore are they never said to be outlawed but to be waived because they have not this admittance into the Law which males have This hath been as I think the ground of that speech That women are lawlesse creatures The second age of males is fourteen yeares accounted by the Law the age of discretion especially materiall to two purposes viz. First that if one under that age commit an act amounting to felony yet is he to stand free
from the attainder and punishment incident to a fellon Regularly it is thus but non est regula quin fall it one of much lesse yeares having attained ripenesse of discretion and discerning shall incurre the like attainder as one of full age as was resolved in the time of King Henry the seventh touching an infant but of the age of nine yeares who having killed another boy of like age with his knife and then hiding the slaine boy and excusing the blood found upon him by saying that his nose had bled It was held by the Judges that he was to be hanged as a fellon his such non-age notwithstanding The other point touching which this age of fourteen yeares is especially materiall is touching an heire of lands held by socage for in case such heire be under that age he is to be in ward to the next kin but if he be of that age he is not to be in ward at all for that the law judgeth him to be of discretion at those years and therefore a Guardian in Socage being in effect but a Bayliffe accountable hee hath no need of such an one other than such as himselfe shall chuse The third age in and touching males materiall is fifteen yeares for every Lord of a Manour or one having Freeholders in Socage or by Knights Service when his eldest son commeth to that age viz. fifteen yeares is to have of them ayd for the making of him a Knight towards which every one holding by a whole Knights Fee is to pay twenty shillings and so ratably for more more and lesse lesse and each holding twenty pound land in Socage is to pay the like summe and so ratably for more or lesse The fourth age of males is the full age of one and twenty years which maketh him free from wardship having lands held by Knight-service descended unto him And also makes him able to alien lands or goods makes firme his bond statutes recognizances c. for although at fourteene the law judge him of discretion yet doth it not hold him fully ripe till one and twenty The last age of males respected by the law is seventy yeares at which time Sheriffes are to forbeare to impanell them in Juries and in case they doe not such old man may have a writ to the Sheriffe grounded upon the statute for that purpose made in the time of King Edward the first commanding such Sheriffe to forbeare the impanelling of him and hee may have an action to recover damages upon that statute This is called by most a writ of Dotage a word perhaps anciently taken in a good and favourable sense Pro dote etatis viz. a gift privilege or exemption allowed to age in favour thereof and as a benefit Having thus by way of ingredient or introduction taken view of these severall ages let us now see wherein and how age is materiall touching them who are to make or to bee made executors and what age required thereabout Master Perkins saith that one of foure yeares old may make a will and consequently executors and his reason is because the executors being to account before the Ordinary it cannot be intended but that the goods shall be distributed for the good of his soule He speakes as if he only made an executor by his will but did not bequeath any thing but left all to the executors conscience and discretion which is not usuall though fesible as before I have shewed or said at least But admit it were so and no bequest at all contained in the will yet since at that age an infant hath no discretion to elect a fit person to distribute his goods money and other things no nor to make continuation of an executorship to another to whom perhaps the infant was executor I cannot see that his will should be of any force but if he be of the age of 14. yeares being the age of discretion in the judgement of law then I should hold him able to make a will although yet he be an infant till twenty one yeares and can make no gift of land nor goods which shall be of force And Babington chiefe Justice to other purpose makes like distinction betweene an infant of such tender yeeres and one come to the yeares of discretion So also as before wee shewed is it in the Case of fellony And that way also sounds that which Hanck saies in Henry the fourth his time viz. that an infant of 18. yeeres old may bee a disseisor as implying that his yeeres may bee so tender that as Candish saith of an infant in Edward the third his time hee is not to bee intended able to know or discerne betweene good and evill me thinkes therefore hee should bee at the least of the age of discretion viz. 14. yeeres who should bee able to make a will and consequently an Executor And the custome for an infant of 15. yeeres old to bequeath by will hath as to mee it seemes affinity with this opinion though there the Case was of land in a borouâ—h devisable by custome and that way reflecteth the Case in the time of King Henry the sixth where it was said that an infant under 15. yeeres of age should not wage his Law viz. take an oath to acquit himselfe of a debt or excuse his default in an action reall And further reason of this opinion will arise out of the consideration of an infant made an Executor Now touching an infant made Executor how young soever hee bee the making of him so is not voyd but yet the execution of the will which is the performance of the office of Executor shall not bee committed to him till hee come to the age of 17. yeeres by the Law spirituall and till then for that hee is not able to doe the part of an Executor administration is to bee committed to some other yet if it bee a woman infant who is so made Executrix in Case shee bee married to a man of 17 yeeres old or more now is it as if shee were of that age and her husband shall have the Execution of the will and if administration were before committed during the minority of the woman it shall now cease as is said in Princes Case Yet I doe a little marvaile at these opinions considering that these things are managed in the spirituall court and by that Law and it intermedles not with the husband in the wives case now by that Law and not our common law comes in this limit of 17. yeers And I have seene it otherwise reported in and touching this last point Further touching infants Executors and under that age of 17. yeeres this is to bee noted viz. that such an one is not able as an Executor to assent to a legacy so as it may by virtue thereof settle in the legatee Also if administration bee during such minority committed with speciall words of restraint or limitation viz.
that it is done to the use or profit of the infant Executor then no sale of lease or goods or assent to legacy by such administrator will bind or prejudice the infant Executor But otherwise perhaps if the administration during the minority bee committed generally And if the Testator himselfe making an infant Executor doe also appoint another to bee his Executor during his nonage expressing it to bee onely for the benefit and behoofe of the infant executor I doubt whether this temporary executor stand any whit restrayned froÌ„ what pertaines to the power of an absolute executor for there may be perhaps difference between him to whom the owner of the goods commits the government of them though but for a time and in speciall manner and an administrator so specially made by the ordinary another being presently by the will of the owner or Testator to have the administration in whom for a time legall defect is found But now let us passe over this age of 17. and consider of the infant betweene that time of his being admitted to take upon him the executorship and his accomplishment of his full age of 21. First then suppose that hee doth release a debt due to his Testator whether shall this bee good to bind him and to discharge the debtor aswell as if the executor had bin of full age hee now having proved the will and being by the Law spirituall approved an able executor And this point comming in question in Russells Case in the late Queenes time consideration was had both of divers good reasons for enabling of this release as that an executor represents the person of his Testator and in his right and power doth these acts and not in his owne and therefore his infancy which is a state or condition of his owne naturall person shall no more disable him then it doth the King a Mayor or other head of a Corporation Also divers Bookes were found to runne that way as well in the case of an infant as of a Femme Covert But upon great deliberation in the Kings Bench and upon conference had with the Lord Anderson Manwood and other justices it was resolved and adjudged that the release of an infant executor without payment of the debt or duty would not bind or barre him first for that if it should it would be a wasting or devasting of the goods of his Testator and so would charge his owne goods Secondly It would bee a wrong which an infant could not doe by his release Thirdly It was no pursuit nor performance of the office or duty of an executor but the contrary And upon this judgement a writ of error was brought in the Exchequer Chamber where it was agreed by all that the release was not effectuall nor binding so as this point now had the resolution of all the Judges of England But it was agreed that if payment or satisfaction had beene made then the infant executor might have made a good acquittance and discharge indeed payment it self if proved brings discharge enough except in the case of a single Bill Note that the principall case adjudged was not of a release of any debt or duty by specialty but of trespasse in conversion of goods found or taken in the Testators life time But Poâ—ito that this infant had assented to a legacy whether will this binde him or not for in the said Case of Russell it is said that all things which an infant doth according to the office and duty of an Executor will stand firme now it is part of his office to pay and execute Legacies Yet since this act amounts to a vastation or wasting of the Testators goods aswell as the other in case there remaine not goods sufficient for payment of the debts and consequently here aswell as in the other case the infants owne goods would become lyable to his Testator debts I doubt and incline that it is not nor can stand effectuall for except in the other wee admit a want or possibility of want of assets or goods the release could neither hurt the infant himselfe nor doe wrong to any other and that admitted this case is of like prejudice yet if this asset should bee voyd so also would bee his payment of Legacies and how then were hee an able Executor at the age of 17. yes to sue and to bee sued for debts and Legacies and if upon suit it cannot bee shewed that debts will take up all or disable the payment then happily hee may bee forced to pay Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse or conditionally viz. if there bee besides goods sufficient c. or that else the nonaged Executor may have an action of accompt for the money by him payed to the Legatee and also avoyd his assent where that only needfull But doubtlesse neither the assent of such Executor before his age of 17. nor any payment of a debt to him could bee good although such acts to or by another Executor before the proving of the will would stand firme and good for this infant wants not onely proving but also ability to prove his Testators will yea the will stands suspended and the Testator as it were intestate whilst the administration stands in force so as during that time nothing can bee done by any as executor and therefore there is great difference betweene the cases What if payment of a Legacy bee made to an infant can hee make a sufficient acquittance This I confesse is besides the point in hand yet because it concerns infants and Executors though not infant Executors it is not amisse here to cast some thoughts and words upon the point for that it many times perplexeth both Executors and Legatees First therefore in case the Executor bee of the yeares of discretion viz. 14. I hold it cleare that any payment to him made will stand good for that the Law at that age holds him able to governe and manage his owne Lands held in socage and consequently to receave the rents thereof wherefore whether hee who makes such payment have any acquittance or not if hee have proofe of the payment hee is well enough acquitted from any second payment and if without payment hee get an acquittance it will not suffice the infancy of him who makes the acquittance considered Besides if the acquittance bee as most usually they are but signed onely with the name of the maker and not sealed it is onely an evidence or proofe of payment and no pledable acquittance because no deed so as it nothing differs from proofe by witnesses save that it is not mortall as they But now if the infant bee under the yeeres of discretion what shall wee say to a payment to him specially if hee bee but three or foure yeares old or thereabout heere I thinke caution is to bee used by the executor generally and the surest way is if hee feare to
the second point it may have these two parts 1. When the executor is able to give such assent to a legacy And 2. when he may do it with safety As for the first he is able before probat of the will to assent unto the execution of a legacy as elsewhere is shewed and that although he be not of full age of 21 yeares but if he be under 17 yeares so as he is not able to take upon him the office of an executor and therefore administration is during that time to be committed to some other Here his assent is not of force or effectuall as wee find in Princes case to have been held in the case of Pigot and Gascoine As for the second part till all debts be payd the executor may not safely consent that the legatee enter into the lease or chattell devised no more then he may pay money bequeathed if there be not sufficient also to pay all debts Of these things more is said elsewhere Yet because the reader or he that desires direction in these points will look for them under this title I thought not good here to be altogether silent touching them As for the third point viz. Whether the assent of one executor where there be many be sufficient I see not how to doubt since any one executor may give away any goods of the testators or release any debts due to him therfore much more assent which is no more or greater work in effect then an atturnment of one lessee upon a grant of a reversion And if there want to pay debts he only who assented shall answer for it of his owne goods and not his companions But if this executor be either under the age of 17 yeares or under coverture viz. a woman maried such is not able to give a good assent to binde the others no nor themselves for then thereby the Infant might draw a debt upon himselfe and the wife upon her husband by assenting to or paying of a legacy there not being sufficient goods to pay all debts But the husbands assent is sufficient where the wife is executor for his acts whom she hath chosen to be her head may prejudice as well her as himselfe yea though she were within age yet he being of full age his assent will stand good But if he or another executor in his own right be above 17 yeares of age and under 21 I doubt whether now his assent will be sufficient at least except the case be put that there be assets sufficient which perhaps there may be materiall though not in the other See more hereof after in the title of women covert and Infants executors As to the fourth point first there may be an assent election implyed as well as expresse for if in the devise or bequest the legatee be appointed to do some act as in respect of the legacy and the excecutor doth accept the performance thereof this amounteth to an assent So if the devise be to an executor for the education of some children which he doth accordingly educate this makes an election to have the thing by way of legacy and not as executor as appeares by the case of Paramoor and Yardly Plowd 543. So if an horse be bequeathed and one offering to buy him of the executor himselfe he directeth him to go and buy the horse of the legatee or if the executor himselfe offer money to the legatee for the horse this implyeth an assent that it should be the legatees by the will and so was it held in the case between Low and Carter where the devisee of a terme did grant it to the executor and this acceptance of a grant from him was held to imply the executors assent that it should be his to grant But I see not well how that should be law which in the latter part of the Lo. Dyer is found viz. where a terme was devised to I. S. and he was made executor and after the death of the testator entred and occupied the lands a whole yeare without proving the Will that this was an election to have it as devisee and not as executor For first he had good right to the terme as executor before probat and so might clearly in that right have taken the profits although it had not bin devised or bequeathed to him and that before any will proved Secondly he could not by right have it as legatee without assent of himself or some other as executor Therefore this general accepation can determine no election as elsewhere is held As for disassent or disablement to assent As if the executor do once declare his assent that the legatee shall have his legacy he may then enter into it or take it notwithstanding the executors countermand or revocation of his assent after So on the other side I think if he do fully and expresly deny that the legacy shall take effect he cannot after make a good assent thereunto for that election once made must stand peremptory be it refusall to assent or assent Yet quae of this for that the refusall to assent may be checked by sentence or decree in the Spiritual Court or Court of Equity and so an assent be inforced But if the power of assenting be legally lost by the meanes aforesaid viz. disabled I see not how any legall interest can be transferred by that compelled assent howsoever decreed And what is said of a legacy bequeathed to another the same may be understood in case where the bequest is to the executor himselfe and he makes his election to have it as legatee or as executor But if where an Horse is bequeathed to A the executor after the testators death doth ride the horse or use him in the Coach or in the Plough I do not take this to be any such disagreement to the execution of the legacy as that the executor cannot after assent to the legatees having thereof no more though it be somewhat more then where a drinking-cup is bequeathed and the executor after the testators death doth use it to drinke in nay if a lease of land be bequeathed to A and the executor continueth the depasturing of the testators therein yet is not this any disagreement to the execution of the legacie but if this lease-lease-land were let out by the testator from yeare to yeare and the executor dischargeth the tenant and taketh it into his hands at the yeares end this I conceive to be a dis-assent to the legacie and so also perhaps may his taking or distraining for any rent thereupon due after the testators death yet am I not resolute that the dis-assent is so peremptory and unchangeable as the assent remembring the case in King Henry the eight his time where a terme being granted by a lessee conditionally so as the assent of the lessor could be had by such a day though the lessors assent were at one time denied yet
effect And it hath beene resolved that this assent shall bee effectuall as well to all the remainders as to the first estate and so according to former resolutions it was admitted in Hamons Case that Alexander his assent to take as legatee sufficed if the bequest had beene good for the remainders to Ralfe and others And the reason of this doubtles is because heere the particular estate and the remainder are all but one estate in Law they make but one degree in a Writ of Entre nor shall have but one yeere and a day to enter for mortmaine And an atturnement to the grantee of a rent or reversion for life with remainder over doth enure also to the remainder which being an assent hath much affinity to that of the Executor each tending to perfect the grant of another man Now then whereas it was urged in Hammoâ—ds Case that the state limitted to Ralâ—e should take effect not as a remainder but as a new estate to commence futurely viz. when Alexander should bee dead without issue male if it should bee admitted to bee so then could not the assent of the first state to Alexander have enured to this since to A. remainder it worketh as being one estate with the first which reason must faile thother way This difference betweene a remainder and new estate future brings to my minde the case of a rent by way of new Creation granted by C. out of land to A. for life or in taile with remainder to B. in like manner where it hath probably beene held although this limitation to B. cannot bee good by way of remainder because C. had no estate in the rent remaining with him when hee made the grant to A. yet should it be good by way of new grant and creation to commence futurely But this doubtles cannot so be but with a difference for if the grant were by indenture betweene C. on th one part and A. only on the other part now B. being no party to the deed can take nothing by it except by way of remainder but if hee were party to the indenture or if the grant were by deed poll to which all men are alike parties then it happily may enure as a future grant to B. This not impertinent Now as the executors assent to one cannot enure to another though of the same thing except by way of remainder so neither can it any way where the things are not the same except in very speciall cases as if a termor bequeath a rent to A and the land it selfe to B the executors assent that A should have the rent is no assent that B should have the land yet I think the assent that B should have the land doth imply the assent that A should have the rent 1. For that the restraint imposed by the law against the passing of a chattell by a will without the executors assent being out of respect to the payment of the testators debts now if the land shall passe to B it is no more availeable to the testators debts that it passe discharged of the rent then charged 2. Since the gift and bequest was of the land charged with the rent therefore if this bequest shall take effect it shall carry the land according to the testators intent viz. with this charge upon it for what else doth the executor in this but assent that the will of the testator herein do stand and take effect and consequently B must take the terme according to the will and not in any different or contrary manner Next we are to consider of the manner of assents by executors which hath some affinity with the fourth point But here we shall consider only of assents conditionall now to this purpose we will cast our eyes upon two sorts of conditions viz. precedent and subsequent As for â—he former an executor may to a legatee absolutely given assent upon a condition precedent as thus I am content that if you can get and bring in to me such a bond wherein the testator stood bound unto I. S. that then you enter upon the terme or take the corne or cattell to you bequeathed So of other like conditions which may precede the assent as if you can get the assent of my coexecutor or if you will pay the arrerages of rent to the lessor behind at the testators death or if you will pay the wages already due to the servants attending about the cattell or corne to you bequeathed In this case if the condition be not performed there is no assent and therefore the conditioning in this manner is good But if it be upon a condition subsequent as thus I do agree that you shall have the thing bequeathed to you provided that you shall pay so much yearly to me or to such a creditor of the testator now the legatee entring into or taking the thing bequeathed shall not lose it againe by failing to performe the condition afterwards for the executor by his assent cannot make that legacy conditionall which the testator gave absolutely no more then he can make that bequest to be absolute which the testator gave conditionally except by a release made of the condition As in other things so in this the executors assent is like to the atturnement of a lessee which cannot be upon a condition subsequent where the grant is absolute or without condition though yet he may to his atturnement prefix a condition precedent In the eighth place we are touching the bequest of leases or chattels reall to consider what manner of interest one to whom a remainder of a terme after the death of another is limited hath and whether he may grant the same or dispose thereof during the life of the first And as to that it is cleare that he hath but a possibility of remainder for that possibly the whole terme may be spent in the life of the first to whom during his or her life it is bequeathed now a meere possibility is not grantable Therefore was it resolved in the late Queenes time where hee in remainder granted or sould his state or interest to another during the time of the first that this grant was utterly void because a possibility cannot be granted but whereas some opinion in that case was delivered that this possibility could not be released no more then granted it hath since bin resolved that he in the remainder by his deed of grant or release to the devisee for life may make his estate which before was determinable by his death to be now absolute so as it shall continue to his executors administrators and assignes after his death during the whole terme It may be that what was conceived in the said case of Fulsey negatively of the validity of a release by him in the remainder might be meant or perhaps expressed of a release to him in the reversion but surely me thinks though he could not surrender yet his release or defeasance to him
the conveyance to another by the common Law amounted to a revocation Therefore was the Statute made tempore Henrici 8. to redresse this viz. that where the King had granted lands or other things to one during his pleasure this should not bee revoked by a grant to another without recitall of the former and declaration that the King had determined his pleasure Being now to consider of relation in the Executors assent it is meete that since these discourses are principally intended for those who are not grounded Students in or professors of the Law that wee shew what wee meane by relation or what it is in Law Thus therefore bee it conceaved that relation is a kinde of fiction in Law making a thing done at one time to bee accepted and repuld or to have its operation as if it had beene done at another time past As for the purpose A doth bargaine and sell freehold lands to B. in August by indenâ—ure which is not inrolled untill October following yet this hath such relation to the date of the indenture that if A. after that and before the inrolment become bound in a Statute or granted a rent charg or made a lease for yeeres or tooke a wife or committed felony yet shall none of these bee of any force to charge or prejudice the state of B. for that the Law adjudgeth him now owner by relation as from the time of the date yea if a servant departing in August for some great breach with his Master do kill his master in October this is in law petty treason as if hee had continued servant when hee did the fact because it relates to the malice conceaved when hee was his servant Now then having shewed that a terme or other chatell reall or personall passeth not nor is transferred in property to the devisee untill the assent of the Executor bee thereunto had Wee now put the case that this assent is not had till a yeere or some such good space after the Testators death and make our question whether this shall have relation to the Testators death viz. to bee in the lawes account as if it had then beene Or perhaps to some purposes so to stand and to others not so That this is usefull and materiall to bee knowne bee it thus shewed One bequeatheth his terme of tithes of an advowson of an House or land by him first leased to an undertenant for rent and dieth in May the Executor assenteth to the bequest in October betweene which two times tithes be set out the Church becommeth voyd rent groweth payable now if this assent shall relate to the Testators death the devisee shall have these else not the like cases may be put of the brood of Cowes Mares and Ewes fallen betweene the death of the Testator and the assent so also of Fleeces of Sheepe shorne c. Now to come to the point it is reported by the Lord Cooke to have beene held in the late Queenes time that this assent shall as betweene the Executor and the legatee have relation to the Testators death yet so that if the Executor before his assent to the devisee of a lease committed wast now the action of wast shall bee brought against the Executor in the Tenuit for the wast done before and not against the devisee in the Tenet But put the case that the legatee before the Executors assent granted the terme to I. S. now if to any purpose this assent shall have relation it shall certainly so bee to make good this grant as making the legatee to bee estated and consequently able to grant before the Executors assent yet doe I not finde any opinion or resolution in the Point but finde it debated at the Barre in the late Queenes time betweene Puckering and Egerton in the case of administration granted to A. after her grant a free terme left by her intestate husband but I finde no resolution therein nor perhaps wants there materiall difference betwixt that case and the other for there the devisee had at least an inception of title by gift of the owner wanting onely a circumstance of assent to perfect it but heere this woman till administration had not so unlesse perhaps the Statute 21. Of Henry the eighth directing or enjoyning ordinaries to grant administration shall amount to a kinde of title ad rem though not yet in re But to returne to the Point of assets where a reversion is graÌ„ted by deed or fine if the lessee a good time after doe atturne this shall have no relation to the time of the grant So as for wast committed or rent growne due between the grant and atturnement the grantee can have no remedy Therefore it is good for him who buyeth or hath any thing of the gift of a legatee to have the assent of the Executor before the sale or gift well testified or if the assent bee not had till after let him take a new gift that hee may not rest in a doubtfull case for besides the premisses that great legist Sir Edward Cooke when hee was a practiser to Master Stubbes of Norfolk for his Sea gave his opinion as I have beene confidently informed that where a lessee for yeeres being outlawed did grant his terme and after reversed the outlawry this did not make good the grant by relation it not being in the grantor at the time of his grant and this hath much affinity with the principall point for there if the relation helpe not the grant is not good from the Legatee Divers cases of bequests considered and expounded IF a termor of an House bequeath his House to B. without expressing how long he should have it he shal have the whole terme and number of yeares So of land Also by the name of the House the Orchards Gardens and Backesides doe passe yea if the House with thappurtenances be bequeathed thereby the lands belonging to the House or used with it doe passe though yet they would not so doe by such words in any lease deede or grant yet by some Civilians or Canonists the Orchard belonging to an House shall not passe by the onely gift of the House without some words shewing the intent of the Testator so to bee or except one gate or doore leade as well to the Orchard as to the House but some other of them hold that it doth passe without any such helpe of circumstance so as it bee adjoyning to the House If a lessee for yeares give his terme by his will to A. hee shall have it without paying any rent for the Executors shall pay it for him a I finde in the Summist but against reason me thinkes If one bequeath his indenture of lease his whole state in that lease passeth So if one bequeath his obligation or other specialty the debt or duty it selfe shall go to the legatee and by the canon or civill law the very action it selfe passeth viz.
Executor if perhaps benefit might accrue to him by the Executorship as happely the discharge of a debt owing by himselfe c. Other Cases there be wherein the Executor will stand more clearely discharged As if the Testator left a Lease for yeares state by extent wardship or other Goods whereto he had but a defesible title and they be evicted after his death So if he left a Ship at the Sea with much Goods and Merchandises which are drowned in the returne never arriving in safety So also if he left a flocke of sheepe tainted with the rot which dye shortly after him in none of these three Cases doubtlesse shall the losse fall upon the Executor But to put a Case of more doubt what if a Lease for yeares come to an Executor subject to a Condition for payment of Rent or a summe in grosse and the Executor failes in payment whether shall this losse fall upon the Executor to be made good to Creditors or Legatees out of his owne substance or not To this I must answer by this distinction viz. If the Executor had taken the profits of this Land so long as to furnish him with money for this payment or if he had other Goods of his Testators in his hands to supply the payment then is it his default that the money is not payed and he must beare the smart thereof otherwise not for he is not bound to make payment out of his owne Goods yet is he a sullen and unkinde Executor who will not so doe when as he may repay and satisfie himselfe by the profits thereof after Like Law if the Executor suffer a bond of a hundred pound to be forfeite for not paying of fifty pound having sufficient in his hands So also of a Recognizance Statute or Judgement defeazansed upon payment of a lesse Summe yea a lesse doubt of all these Cases then of the forfeiture of the Lease for yeares for haply the Executor had time to have sold the Lease and made money thereof towards the payment of Debts the omission and neglect whereof may be imputed unto him as a default justly occasioning recompence to be by the Law required from him But perhaps he may excuse himselfe that he could not find a Chapman who would give him to the value thereof hereunto yet reason can easily reply that it had beene much better to have sold it under the value then to have lost the whole value by exposing or abandoning it to a totall forfeiture CHAP. XI How farre and where an Executor having Assets is chargeable or lyable to Action HAving considered what things shall come to Executors and be Assets in their hands for the performance of the Will Let us now consider what thing the Executor is bound to pay satisfy or performe and what not where he is chargeable and where not this being admitted that he hath Assets viz. sufficient wherewith to performe Here we will consider of these parts 1. Of Debts by Specialty or Record 2. Debts or duties by Contract without Specialty 3. Debts without either Contract or Specialty 4. Covenants by Deed or Specialty 5. Wrongs done by the Testators TOuching Debts by Specialty which are the most usuall and common obligements it will not be impertinent to give a little light touching the validity of a Specialty and the extent of it to Executors The most doubt will arise upon Bills and such Writings Obligatory made not by Scriveners nor Clarkes in common forme but by others otherwise for haste or through simplicity Thus long since we finde a Writing made by A. to B. Memorand that I have received of B. ten pound which I promise to pay c. This being sealed and delivered was held a good Obligation by Brian and Catesby So if the words had beene onely I shall pay to B. ten pound and whether such words or the like as Covenant or Grant to pay be in the forme of a Bill or Bond or in an Indenture or Articles it is a sufficient ground for an Action of debt And though it should be miswritten Wigint for vigint or fiâ—teene for fifteene yet shall it be favourably construed and held a good specialty of debt as hath beene resolved in these and like cases and so also notwithstanding false Latine in the Obligation or the plurall number for the singular number or words of repugnancy or non-sence yet if there be words whereby it appeares that A. is a debtor to B. and it be sealed and delivered it is a good writing Obligatory yea though it want the words of conclusion viz. in witnesse whereof as the Lord Dyer reports to have beene resolved although the contrary were held in foure severall Kings times before as our Bookes shew Now any such Writing Obligatory doth determine or drowne any duty by Contract because Specialty is of a higher nature So as if A. and B. doe bargaine with C. to pay him a hundred pouud for Corne or other thing and after C. take some such Writing Obligatory as aforesaid of A. now by this is B. discharged of the debt because he stood charged onely by the Contract which is extinguished by the said Specialty As for the extent and operation of these Specialties to and upon Executors we must know that an Executor doth so represent the person of the Testator and is so included in him as that every Bond or Covenant by the Testator made for payment of money or the like reacheth to the Executor although he be not named viz. that he doth not Covenant for nor binde him and his Executors by expresse words and yet the Heire not named is not bound though there be never so great Assets or Land discend unto him Now touching debts upon Record much need not to be said except of those by Statute Marchant for to debts and dammages already recovered against the Testator and to debts by Recognizance the Executors liablenesse is somewhat cleare and conspicuous Yet other inferior debts upon Record may fitly be thought of as Issues forfeited Fines imposed by Justices at Westmin or at Assises Quarter Sessions Commissions of Sewers of Bankrupts By Stewards in Leetes or the like for all these are debts of Record which Executors stand charged withall So also if the Testator were before Auditors found in Arrerages of Account being a Bayly or receiver For these Auditors are by Statute Judges of Record but if the Account were made onely before the party to whom the Arrerages pertained or but before one Auditor onely it is out of the Statute which speakes of Accounts before Auditors in the plurall number Therefore the Executor not chargeable because the Testator might wage his Law in those cases not in the former And whereas exception was before made of a debt by Statute Marchant it was by reason that the Lord Bro. tells us that if the conusor in that case be returned dead