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-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
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
shall be said so to come to their hands as to charge them 1 in things reall 130 2 in things personall 132 2 What shall be said such a losing or going from them as to excuse them 137 Chap. XI Of an executor having assets how far and where he is chargeable and lyable to action 1 PAyment of debts by specialty or record 141 2 Of debts or duties by simple contract without specialty 145 3 Of debts without either contract or specialty 149 4 Of covenants charging executors by deed or specialty 150 5 Of wrongs done by testators and how far the executors are lyable to make amends 155 THE OFFICE OF EXECVTORS THe things considerable touching Executors may all in effect be reduced to these three Heades viz. 1. Their Being 2. Their Having 3. Their Doing By the first I intend their creation or constitution with the incidents thereto By the second their Interest Fruition or Possession By the third their Managing and execution of their Office This last was and is the thing principally in my intention and the chiefe ayme of these Discourses but necessarily it must have some Ingredients some Concomitants and some Consequents as he that travelleth from London to Yorke to speake with I. S. must needs passe by thorow other Townes and Villages and speake with divers other persons in his journey and returne To come first to the first therein wee will consider these sixe things 1. Whether an Executor and a Will be such Relatives that one cannot be without th' other and therein of the severall kinds of Wills 2. How and by what words an Executor may be made and created 3. How he may be in speciall manner different from the generall fashioned limitted or qualified 4. Who may make or be made an Executor and who not 5. What one may give or bequeath by Will what not 6. How a will or Executor once made may be unmade and what shall amount thereunto viz. To a revocation totall or partiall what to new Publication Of the relation betweene a Will and an Executor AS to the first the very name of Executor purporteth in the generall one that is to execute somewhat or to whom the execution of somewhat is committed or recommended In our particular therefore an Executor of a Will must needs be such an one to whom the execution and performance of another mans Will after his death is commended or committed Or who is constituted and authorised by the Testator or Will-maker to doe him that friendly office Hence it followes necessarily that a Will is the onely bed wherein an Executor can be begotten or conceived for where no Will is there can be no Executor And this is so conspicuous and evident to every low capacity that it needs no proofe nor illustration On th' other side though much be written in name of a Will many Legacies bequeathed and many things appointed to be done Yet if no Executor be named here is no Will for these two be so relative and reciprocall as that one cannot be without th' other if no Will no Executor if no Executor no Will. Yet here two Cautions are to be affixed 1. That a mans minde will and intent touching the disposition of his goods being declared although for want of naming an Executor he die intestate so as Administration is to be committed Yet for that here is not onely an inchoation or inception of a Testament but so farre a progression therein as Testatio mentis that is the manifestation of the paâ—ty deceased and owner of goods therefore this minde and intention of the Intestate being notified and made knowne to the Judge who is to commit Administration is usually annexed as I take it to the Letters of Administration and meete so to be as a direction for and to the Administrator as well as the Will fully and perfectly made but refused to be proved by the Executor which is usuall Another Caution is That where a man seised of Land in Fee-simple disposeth the same or part thereof by his Will in writing this standeth good for the whole or part according to the difference of Tenure although no Executor be named so as the party dieth Intestate and Administration is to be committed as touching his goods and yet hath a Will as touching his Lands This may seeme strange that the reason thereof is an Act of Parliament inabling to dispose of Land by Will in writing And for that Land is not properly Testamentary neither hath the Executor if any be anything to doe or intermeddle therewith and therefore is the making or not making of an Executor nothing pertinent to the validity or invalidity of this devise or disposition of Land by Will So as though where there is not Testatio mentis there is not Testamentum yet may there be the first without the later Having seene that bequests of Legacies without making of Executors doth not amount to a Will Let us now consider whether the sole making of Executors in the name of a Will without giving any Legacie or appointing any thing to be done by his Executors Whether I say this be or amount unto a Will or not Since hereupon the matter nothing is willed and consequently nothing rests to be executed by the Executors whose Office as hath beene said is to execute the Will Minde and Intent of their Testator and Vbi non est Testatio mentis non est Testamentum saith the Cannonist For answer hereunto confessing that indeede to be the Office of an Executor I yet conceive confidently that in the Case above put there is a good Will and as a Will it is to be proved and approved for these Reasons First for that the maine and principall part of an Executors Office and that which most concernes the soule of the Testator as our Bookes speake is the payments of his debts Now who knowes not but that the very making of an Executor is the constituting of such a person who is to pay all debts and for that cause and end principally is to have and enjoy all the goods and chattels of the Testator and all summes of money to him owing as the naming of A. and B. Executors is by implication a gift or donation to them of all the goods chattells credits and personall estate of the Testator and the laying upon them an Oligation to pay all his debts and making them subject to every mans sute and Action for the same And if the Law speake thus much sense Quod necessario subintelligitur non deest What neede then the party expresse it in his Will If hee had willed more than this as to have given this or that in way of Legacy it had beene needefull for him so to have set downe in his Will but there is no meere necessity that every man should give Legacies the estates of many will not doe more than pay their debts nor oft-times so much so as if they should give
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
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
long before in Edward the third his time it was debated whether it were waste in a Lessee to remove or take away a Furnace or not but I finde no opinion delivered by the Judges But in the late Queenes time Justice walinesly said that the Lord Dyers opinion was that where the Furnace is not fixed to the Wall the Lessee might within his termetake it away Contrarily if it were fixed to the Wall for then it strengtheneth the house And yet notwithstanding it might be in the one case so removed by the Lessee yet is it not there as he said a Chattell personall or moveable so as it is attachable and there the case being that a Clothier being a Termer of an house had fixed a Copper to the Wall with Loomes and prickes necessary for his Occupation a Judgement being had against him the Sheriffe delivered the Copper in execution as a Chattell and after the Lessee tooke it up and it was taken from him by vertue of the Execution whereupon he brought an action of Trespasse and by all the Judges the action was mainetainable And whereas it was found by the Jury that by the Custome of Kent the Lessee might remove such a Copper Justice Beaumond said that without any Custome a Lessee might so doe at any time during his terme But it is to be noted in the said case that the Furnace was by it selfe delivered as a moveable Chattell and not as part of the house for that was not medled withall nor at all delivered in extent as in the case betweene Miles and Prat where both house and Copper were delivered upon a Statute the house belike being held upon such a rackt rent as that the party did not desire to have it for hee might have had the whole being a Chattell and so have used the Copper during the terme And as touching all other fixed things the Law was taken in the said case in Henry the 7. his time to be all one as in the case of the Furnace viz. that they should goe to the Heire save onely that for glasse in the Windowes Pollard said it was otherwise viz. that that should goe to the Executors which none there denyed But since in the late Queenes time it was otherwise resolved touching glasse that it should not goe to the Executors and the like was there said touching Wainscotes and so also by the Lord Ander in the said case of Austin And touching Posts fixed for that they be parcell of the Freehold so also of Millstones Anvills Doores Keyes Windowes none of these be Chattells but parcell of the Freehold or thereto pertaining therefore not the Executors Now to come to Gardens also Whereas I before laid down a difference betwixt things sowed or not arising from the Earth without manuring and such as grow of themselves It will thence be concluded that the rootes of Carrets Parsneps Turneps Skerrits and such like coming and arising from yearely sowing must goe to the Executor and not to the Heire the case being so that the Gardner and Sower had the Inheritance of the Garden or Soile now though in most places this can rarely be a question of value yet about London and some great Townes it may and therefore not unworthy of a line or two a thought or two the rather for that the reason of this case may give light touching right in other Cases And in my opinion these notwithstanding there is a sowing and manurance to generate them and cause their being shall goe to the Heire and not to the Executor my reason is for that the thing of profit is the roote which is hidden in the ground and I hold it no reason nor agreeable to Law that the Executor should digge and breake the soyle and ground to search for her entrailes hee is to content himselfe with that which is above ground as millions of all kindes and the like whose fruit is above the ground but as for Artichoks though the fruit be above the ground yet I thinke they have no such yearely setting or manurance as should sever them in interest from the soyle therefore they shall goe with it to the Heire Let us now consider of things though not fixed to yet usually kept in houses viz. writings and evidences whereabout generally no doubt can be but that they follow the interest of the Land so as if they touch inheritance they pertaine to the Heire if but Termes Goods Chattells or Debts they pertaine to the Executor yea so doe Statutes and Bonds in Law howsoever otherwise in equity though they concerne the assurance and enjoying of inheritance purchased What if A. morgage the inheritance of Lands to B. upon Condition of redemption by payment of 500. pound to B. his Heire or Executor and B. dyeth the Deedes being delivered into his hands now the Heire not the Executor shall have them for though the money may be paid to the Executor yet meane time the Land descends to the Heire nor is there any debt to the Executor for A. may choose to pay or not Put it on the other side that the Land had beene sold for 500. pound not paid to A. but a Condition that if not paid to him his Heire or Executor by such a day then to re-enter and A. dyeth here is a debt to the Executor and no Land descended to the Heire of A. yet shall the Heire have the Deedes for that a Condition is descended to him Question hath beene touching Boxes and Chests wherein the Evidences concerning inheritance are and although the better opinion in our Bookes doth pitch upon this difference that where they are sealed up they shall pertaine to the Heire otherwise where not sealed I cannot conceive that difference to be grounded on good reason but rather thinke that Boxes which have their very creation to be the houses or habitations of Deeds should as appurtenant to them goe to the Heire whether sealed or not On the other side Chests made for other use viz. the keeping of Napery or Apparell shall not as I conceive be taken as appurtenant to Evidences because some be in them for so may other things also be Nor as touching them can sealing be of any effect but rather locking and not locking must make the difference touching them if any difference by inclosure Of things not actually in the Testator but accruing to the Executors by or after the Testators death These be of diverse sorts the first and chiefe whereof are things gotten and acquired by Action or Suite Secondly by Condition or Covenant without Suite Thirdly by Remainder Of things in Action TO speake first of the first it is cleare that debts due to the Testator be it by Bond Statute or Judgement or for Arrerages of Rent are not assets to charge the Executor untill receipt of them and it is as cleere that the Actions to recover these doe pertaine to the Executor and that the debt and dammages recovered
shall be assetts to charge the Executor So also of Actions of Detinue and of covenant for any thing personall or any Chattell Reall Lease Wardship or the like But perhaps some will doubt of Covenant touching Inheritance viz. the assurance of Lands or enjoying thereof free from this or that incumbrance or the like Yet even in those cases if the Covenant were broken in the Testators life time I thinke clearely the Action is accrued to the Executor for that his Testator was to recover dammages in the Action of Covenant for that breach and he being intituled to these dammages as principall and not any accessary thing in that action the Law hath cast that action upon the Executor And that is the cause why if waste be committed in the life of the Lessor by his Lessee and then the Lessor dyeth his Heire can have no Action for this waste viz. because he cannot recover the treble dammage as neither can the Executor have it for that he cannot recover locum vastatum the place wasted the Inheritance whereof is in the Heire That an Executor at the Common Law could not maintaine an Action of trespasse for goods of his Testator taken away in his life time seemes to be implyed by the Statutē in the time of King Edward the third Which gives such action Yet it seemes that a Replevin was mainetaineable by the Executor at lest in some cases for goods taken or distrayned in the Testators life time But in case the distresse were for Rent Service it is said a little after the making of that Statute that the Lord may not now avow for his Rent or Service because his Tenant is dead but must set forth the matter and thereupon justifie to excuse himselfe from answering dammages and the Executor shall by this Action recover the Cattell or Goods and that by the Common Law saith the Booke though the Statute of Marlebridge had never beene made for that the property remained in the Testator Note it speakes not at all of the said Statute of 4. Edward the 3. But Newton in the time of King Henry the 6. would have it that the Executor in that case should not have a Replevin but an Action of Trespasse grounded upon the said Statute viz. 4. Ed. 3. Which me thinkes cannot be by any meanes by reason of the Statute of Marlebridge cap. 3. Non ideo puniatur dominus c. for the Executor as well as his Testator is thereby restrayned as I thinke from the Action of Trespasse against the Lord. As for that no Avowry can be made upon the Tenant that is now remedyed by a late Statute The other Statute hath beene taken to extend to other things then Goods moveable for where a Church becomming voyd a stranger presented thereunto wrongfully and the Patron dyed it was resolved in the late Queenes time that the Executor might by the equity of the said Statute mainetaine a Quare impedit But whether an Action of Trespasse lyeth for an Executor against him who spoyled the Testators Corne Grasse or Wood growing hath beene questioned but no where resolved to my knowledge I thinke it may lye with some difference First for that the Statute of 4. Edward the 3. doth not onely speake of Goods carryed away as limiting the Law to that trespasse soly and particularly but speakes generally of Trespasse done to Testators and then brings in that particular of goods as one Instance Now there be many cases of instances or ensamples given in acts of Parliament which yet doe not restraine the remedy or purven to that particular or from extending to other cases of like nature Thirdly the Statute speakes of Trespasses remaining unpunished which it meant to redresse But it should still leave many unpunished if it should have no larger extent than to that one singular trespasse of Goods taken away viz. moveables Againe the Testator was clearely intituled to a recovery of dammages for this other trespasse which if he had recovered should have come to his Executor Yea the things themselves all if felled in the Testators life and part though not felled should have come to the Executor therefore also the dammages recoverable in liew thereof out of which recovered the debts and Legacies of the Testator are to be satisfied Besides this Action of Trespasse is a thing severed from the state of the Land so as if the owner thereof had after this trespasse done aliened the Land yet had this Action remained to him as I take it clearely And why not as well as where a Trespasse is done upon the Land of the Lessee and then the terme expires this doubtlesse doth not take away his Action nor his Executors But me thinkes here may be some differences probably taken as first betweene a Trespasse in destroying or taking away Come growing and a trespasse in Grasse or Wood growing for the first being of that nature as that though the Owner had a state of Inheritance in the Land wheron it groweth should have dyed before severance and felling Yet it should have gone to the Executor and not with the Land to the Heire therefore doubtlesse doth the Action for destroying or taking away thereof accrue by the operation of Law to the Executor in liew of the thing taken or destroyed Otherwise perhaps of Wood or Grasse Which by the Owners death should have gone to the Heire and not to the Executor And yet here againe another difference me thinkes may be betwixt Grasse and Grasse viz. betwixt that in Pasture and that in Meddow yearely mowed and turned into Hay not lest to be consumed by the mouthes of beasts as that growing in Pasture For as the Law distinguisheth betweene these Soyles gives precedency to Meddow and makes it waste for a Lessee to Plough it up not so for Pasture Yea Tithe is payed of Hay but not of Grasse growing in Pastures so the Meddow Grasse being in the Owners purpose and intention as a thing severed from the soyle should mee thinkes so be also in the eye and estimation of the Law and therefore stand in a different state and account from Pasture Grasse A third difference may be in the manner of the Trespasse viz. Where the Meddow Grasse is eaten up with Cattell by a Trespasser and where by him mowed and carryed away as Hay for in this latter case an Action of Trover and Conversion for so many loades of Hay is doubtlesse maintainable by the Executor though it should be admitted that in the other case of consumption by the mouthes of beasts without severance no action should be maintainable by the Executor which yet I admit not but thinke the contrary probable For when Meddow ground which yearely conceiveth Sol sine homine generat herbam shall be ready to be delivered of her burthen if a stranger putting in an head of Cattell which swallow up and tread downe this fruit of her wombe before the Mower
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
heire may distraine them as dammage fesante Where the Testator recovered Land and dammages or a Deed and dammages he dying before execution the Heire shall have execution for the Land or Deede and the Executor for the dammages but temp Edward the 4. it is said that untill the Heire sue a Scir sac the Executor cannot sue execution for the dammages If a Creditor be made Executor by his Debtor and pay himselfe part out of the Goods he cannot sue the Heire for the rest because the debt cannot be apportioned but otherwise he may saith the Book yet Quae. if he doe take upon him the Executorship and have goods sufficient to pay all If a debt be recovered against one who dyeth before execution sued leaving goods sufficient to satisfie now shall not the Land descended to the Heire be charged therewith nor by like reason any land conveyed after Judgement See a good difference where land is conveyed upon condition of payment to the Vend or his Heires or assignes and he dyeth before the time and where it is to be paid to the Vendee his Heires or Assignes and he dyeth in the first case payment shall be to the Executors but not in the other What things pertaine to the Heire and what to the Executor is before shewed As for Frowickes opinion that where goods be mortgaged upon condition that if the Heire or Executor pay c. here if the Heire make payment he should have the Goods I see not how that can be A Directory for the following Chapter A. All as but one represent the Testators person and must joyne and be joyned in suite e contra B. Where one alone must answer suite and how C. When they differ in Plea the best shall be taken but one may confesse alone D. One aswell as all hath may give assent or release the whole E. One cannot give nor release to another nor divide F. The possession of one is the possession of all to what purpose G. If the surviver dye Intestate the Testator is intestate though some other Exec. left an Executor H. Included in the person of the Testator and represents it Is his Assignee all one e contra I. What change by death of the Testator touching proceeding in suite K. Proceed to or in Execution where without Scire fac M. Whether the Executor stand in his owne quality or his Testators N. Where one alone may sue O. In suite for them such as will not joyne shall be severed and th' other may sue and prosecute alone consequents inde P. Death of one Executor Plaintiffe or Defendant where abates Writ CHAP. IX How Executors stand betweene themselves and in representation of or relation to the Testator As his Assignee or Deputy or as the same person with him and where and to what purpose as other persons FIrst all of them doe represent the person of the Testator and therefore must they all joyne in suite against others and in suite by others they must be all made defendants or at least so many of them as do Administer for though the Executors themselves must take notice by the Will how many Executors be and must frame their suite accordingly Creditors and strangers neede not take notice of any more then doe Administer and Execute the Office of Executors For this reason as I take it in the time of King Edward the 3. where two Executors were of a terme and the reversion was granted by Fine mentioning but one termor and thereupon a Quid juris clamat accordingly brought against that one Executor this was held good enough though the other Executor was not named in the Suite belike because that one who indeed was the Testators Wife did onely occupy the Land and take the profits thereof for else since all the Executors doe represent the Testators person all must have beene named Therefore did the Judges resolve in the time of Henry the 4. that where a Lessee for yeares made two Executors and one of them was distrayned by the Lord for Rent who avowed upon the Lessor that Executor should have aide of his fellow Executor to the end that both might have aide of the Lessor which one alone could not And upon this reason viz. that the Executors represent the person of their Testator as one person for so speakes the Parliament It was enacted in time of Edward the 3. that the Executors though never so many shall have but one essoyne neither before appearance nor after because their Testator whose person they represent could have had no more It is further also enacted by the said Statute that where two or three Executors or more be they being sued in an action of debt though all doe not appeare yet such one of them or more as doe or doth appeare at the Graunde distresse shall answer alone without his companions And this Statute hath beene taken by equity in three respects First touching the persons that it shall extend not to Executors onely but also to Executors of Executors yea to Administrators also though the Statute speake onely of Executors Secondly touching the actions whereas the Statute speakes onely of the Action of debt it is taken by equity to extend to other actions as the Writ de rationabili parâ—e bonorum and detinue yet perhaps this latter action will be said not to be maintaineable against Executors for their Testators act but for their owne onely But we yet are not come so farre as to determine what is maintaineable but whether before all the Executors doe appeare he or they which have appeared shall be put to answer and so to bring it to decision whether the action be maintaineable or not I thinke also that in the action of covenant and all other actions against Executors as Executors he which appeareth must answer without his companions though the greater opinion in the Quadragesimes were contrary touching the action of Covenant But as for the sub paena against Executors which is to make them to answer to a suite in equity that hath beene temp E. 4. taken to be out of the reach and intent of the Statute So also of the Latitat in the Kings bench as was held in the same Kings time except all the Executors making up the whole representative body of the Testator be in the custody of the Marshall one or more of them who are there shall not be inforced to answer and so was it also lately held in the Kings Bench where Master Justice Houghton gave an excellent reason this case is out of the said Statute viz. for that this Writ doth not mention any debt nor name the Defendants Executors Thirdly and lastly that Statute is extended by equity to other Writs or Proces for where the Statute speakes onely of the
Grand distresse and the Executors appearing thereupon It hath beene many times ruled that when he or they appeare upon the Attatchment Capias or Exigent answere must be though the rest appeare not for so the word Distresse is taken for all compulsary meanes or enforcement of appearance But where the Statute reacheth not viz. when the Proces is determined against one or more as by Outlawry c. there the rest must answer by the rules of the Common Law except it be in the case of Husband and Wife Executor for there the Wife cannot answer without her Husband nor doubtlesse can he without her where she and not he is Executor but where both be Executors there he may answer without her but not she without him When Executors as Defendants have appeared if any one of them will confesse the Action this bindes and concludes the rest but if one will plead one plea and the other another that say some shall be received which is best for the Testators state so where they sue such as will not prosecute shall be severed and the rest without them may proceede and in like manner where they pray to be received to defend their terme and one of them after makes default it shall not be the default of all but the rest or he if it be but one who appeares shall be received to uphold the defence of the terme Thirdly so where they pleade a release to the Testator or themselves one after making default this shall not be nor make a totall default in the Executors to induce a judgement or condemnation against them Yet in truth each Executor hath the whole of the Testators Goods and Chattells be they Reall or Personall and each may sell or give the whole One of them cannot give nor release to the other his Interest and if he doe it is voide and he who releaseth shall still have as much interest as he to whom he released because each had the whole before upon this reason long since where one of the two Executors released but his part of a debt it was held that the whole was discharged and so if one Executor grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no parts or moyeties betweene Executors Therefore also though a lease for a thousand yeares of a thousand acres of Land come to two Executors or more no partition or division can be made betweene them because it is not betweene them as betweene joynt Lessees of Land where each hath but a moyety in interest though possession of or through the whole Amidst Executors each hath the whole and therefore if he graunt his part he graunts the whole But one Executor may demise or grant the moyety of the Land for the whole terme and so may the other doe and this way they may settle in friends or others trusted for them a moyety for each either in severall or undivided but one of them cannot make a lease to the other of any part for he had the whole nor can one sue the other as Executor yet if the Testator devise to one of his Executors all his goods after such debts and Legaâ—ves satisfyed there after those satisfyed that Executor may take the Goods and maintaine an action of Trespasse against the other Executor if he take them from him and consequently an Action of Detinue for keeping or detaining them but this is as Legatee his owne assent perfecting the Legacie The possession of one Executor is the possession of all the rest so as if one appearing to a Sute and the other making default in whose hands all the goods be which are not administred if I say here hee that appeares pleades that he hath nothing in his hands this shall be found against him for whatsoever any of the co-executors hath hee also hath and is in his possession and so shall the Creditor recover and have judgement to be satisfied out of the Testators goods as in his hands And therefore if goods be taken from one all may maintaine an Action of Trespasse thereupon for the possession of one is the possession of all But the possession of one shall not be so the possession of all as to charge the others owne goods wherof more elsewhere Where two Executors be made the one making a Will and executors and dying if the other die after intestate now shall not the Executor of him who first dyed be Executor to the first Testator but hee is dead intestate because the surviving Executor is so dead and in him the Executorship was wholly and soly setled by the death of his fellow before him So Administration de bâ—nis non admin shall be committed The Executors or Executor if but one so represents the person of his Testator that hee is in Law his Assignee by the very making of him Executor so as if one covenant to make a Lease to I. S. and his Assignes by such a time and I. S. dieth before that time and before the Lease made now must the Lease be made to his Executors as his Assigne representing his person so also in a condition to pay to the Feoffor or his Assignee yet a Lease to A. and his Assignes during the life of B. shall not goe to the Executors of A. So where in a generall pardon by Parliament there is an exception of persons outlawed after judgement unto the person so out-lawed shall satisfie the Creditor who hath out lawed him If the Out-law die before this done his Executor as representing his person may make satisfaction and so make the benefit of the pardon to extend to his Testator for saving his goods as if himselfe had satisfied his Creditor though he left him unsatisfied when he left the world d. em obiit extremum Yet where A. sold Land to B. upon Proviso that if he payed â—o B. his heires or assignes c. B. died A. payed at the day to his Executor and it was doubted that it was not good for the word Assignee could not reach to him being no Assignee of the Land and where the Executor brought an action of account upon a receipt by the hands of the Testator the Defendant could not be admitted to wage his Law for that this was held a receipt per autermains yet it is cleare that if one by Bond or Covenant tye himselfe to pay such a summe at such a day not mentioning his Executor at all yet is the Executor bound as included in the name or person of the Testator And where the Statute 23. of Henry the eight gives the Writ of attaint in the course there mentioned against the party that had judgement it lieth against his Executors if hee be dead but
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
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
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