Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	estate_n	life_n	tail_n	3,334	5	10.1071	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A65445	The office and dutie of execvtors, or, A treatise of wils and executors, directed to testators in the choise of their executors and contrivance of their wills with direction for executors in the execution of their office, according to the law, and for creditors in the recovery of their debts : expressing the duty, right, interest, power and authority of executors, and how they may behave themselves in the office of executorship : with divers other particulars very usefull, profitable, and behovefull for all persons, be they either executors, creditors or debtors : compiled out of the body of the common-law, with mention of such statutes as are incident hereunto.	Wentworth, Thomas, 1568?-1628.; Doddridge, John, Sir, 1555-1628.	1641 (1641)	Wing W1358; ESTC R15205	180,173	328

nothing it was resolved that A. should not have i● 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 fe● 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

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 Hammo●ds Case that the state limitted to Ral●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 ●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

Things accrued by Covenant or Assumption IF A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be in him as Executor and consequently as Assets This is proved by the Judgement in the Case betweene Chapman and Dalton in the late Queenes time Yet I confesse that it is not expressed in the resolution of this Case that this Lease should be Assets but that the Executors should have the Terme as Executors which implyeth as much in my understanding and the declaration whereupon the Defendant demurreth sets forth the breach of that Covenant to be in retardatione executio●is testament so as the dammages thereupon recovered viz. 300 and 30. pound were Assets and consequent●y also should the terme have beene in ●ew and recompence whereof these dammages were given The like Law if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Mault or so many loades of Coales or Wood or any other Wares or Marchandise and this is not performed in the life of B. but after to his Executor it shall be to him as Executor and shall be Assets in his hands as well as the money recovered in dammages for not performing should have bene Of things accrued by remainder or increase IF a Lease be made to one for life the remainder to his Executors for yeares and he dieth this will be Assets in the hands of his Executors though it were never in the Testator as was in the later end of the late Queenes time resolved by three Justices the Lord Anderson onely being of a contrary opinion and there it was said that Cranmers Case wherein the contrary in effect was resolved was of little authority for that there were first two Judges against two till after Mounson changed his opinion upon a conceit that there the estate was by way of use which could make no difference like law where a Lease for yeares is by Will bequeathed to A. for life and after to B. who dieth before A. Although B. never had this terme in him so as that he could grant or dispose it yet shall it rest in his Executor as his goods and be Assets As for a remainder for yeares so in the Testator that hee might grant or dispose it at his pleasure no doubt can be thereof though the same fell not in possession to the Testator in his life time yet no scruple nor doubt can be but that this is Assets to the Executor even whilst it continues a remainder and before it falleth into possession because it is presently valuable and vendible Nor much of other nature to these are the Cases where the Executor Marchandizing with the goods of his Testator maketh gaine thereof So if the Sheepe or other Cattell of the Testator doe breed viz. beare Lambs Calves Colts c. after the Testators death even these which were never in the Testator shall yet be Assets and so the Wooll growing upon the Sheepe after the Testators death But there is one Case worth the consideration and worthy of some doubt as I thinke and that is this One leaveth to his Executor a Lease for yeares of Land worth twenty pound by yeare and the Executor keeping this in his owne hands one yeare after the Testators death doth make thereof thirty pound in cleare gaine above all charges now whether as to a Creditor this whole thirty pound shall be Assets or onely twenty pound and the Case simply thus put shall be understood of an occupying and manuring without any stocke of the Testators and then if the Executor did stocke it with his owne Sheepe or other Cattell as he must have borne the losse by rot or death so is it reason that if the manurants prove gainefull he reape the fruits thereof in recompence of his adventure and of his industry skill and good husbandry But if the Testators stocke of Sheepe and Cattell were as of necessitie or for the better advantage of the Testators estate continued upon the Lease Land then is it reason that the gaine or losse whethersoever of them God sendeth doe redound to the Testators estate Like Law as I thinke if an Executor finding that he cannot instantly after the Testators death let the Lease Land neare the value shall therefore buy seede-Corne and hire the plowing c. But it may be said that the Lease hath one entire valuation at the first upon the appraisement To this I answer first that the value upon the appraisement is not binding nor much respected at the Common Law if it be too high it shall not prejudice the Executor if too low shall not advantage him but the very value found by Jury when it comes in question whether the Executor have fully administred or have Assets or not is that which is binding Next I say that if a long Lease come to Executors of Land worth an hundred pound by yeare and no sale is made thereof by the space of a yeare or more now the terme continuing of the like value as at first it is no reason but this hundred pound raised the first yeare should goe towards the payment of debts and Legacies rather then any of them should be unpaid This thing I meane the knowledge of them are usefull two wayes viz. First to give light to Executors to discerne what unto them of right pertaines Next to shew unto Creditors and Legatees what and how farre things shall be Assets that is to say goods to enable charge and binde Executors to pay debts and Legacies For whatsoever any of these wayes commeth to the Executors from their Testator or is recovered by any of these Actions shall be in their hands Assetts the Cost and charges of recovering deducted CHAP. VII What manner of Interest an Executor hath in his Testators Goods and Chattels and how different from the common Interest they or others have in their owne proper goods THe Interest which an Executor hath as Executor in the Goods of his Testator is much different from the absolute proper and ordinary Interest which every one hath in his owne prope Goods as may well appeare in and by these points 1. Although if a stranger take away these Goods the Action of Trespasse for the Executor is of generall forme Quare bona sua cepit calling them his Goods whereas a man Outlawed in Debt c. or convict or attainted of felony or treason forfeiteth all his owne Goods yet these which he hath as Executor shall not be forfeited If a Villen be made Executor his Lord cannot take these goods though he may take all the Villens owne Goods and for taking such Goods or for a debt due to the Testator a Villen may sue his Lord. Nay if the Executor grant all his Goods some good

and wife and the will proved with both their likeing in the wives name and examine what acts the wife of her selfe is able to do and what her husband without her It hath beene conceived by many of old and by some of late that if a Femme covert or maried woman executrix release a debt of her testator or give away the goods which she hath as executor or deliver a legacie bequeathed it was firme and good and on the other side that her husbands gift or release was of no value for that the administration or execution of the will is committed to the wife only and some have gone so farre as to say that she may sue or be sued without her husband in the Courts of Common Law I meane for in the Spirituall Court it is true the husband is not joyned with the wife in suit but the law is doubtlesse in all those points contrary as not only some opinion also was of old viz. in the time of H. 7. but also hath beene in the late Queenes time resolved for otherwise if the wives gift or release should stand good her act might exceedingly endamage her husband and make his goods lyable to the creditors the testators state being wasted by the gifts or releases of his wife Wherefore it was held in the said late case that unlesse due payment were made to such women covert executors their releases or acquittances be void and so also their gifts and grants yea it was then held that the husband of the wife executrix may give goods or make releases of debts at his pleasure But doubtlesse by mariage neither are the goods though personall which the wife hath as executor devested out of her and setled in her husband as her own goods are nor if she dye shall they acrue to the husband if no alteration were of the property but shall go to her executor or to the next of kin being administrator of her testator if she have no executor and so was it held in the first yeare of Queene Mary Yea though for any other goods which the wife had in her owne right before marying the husband alone without naming the wife may maintaine an action of trespasse yet touching such goods as the wife hath as executor the action must be brought in the names of the husband and wife to the end that the damages thereby recovered may accrue to her as executor in lieu of the goods So also must the replevin for those goods be in both their names But although the husband be thus named with the wife yet principally is it the suit of the wife and therefore in such actions or in debt by husband and wife she being executor if it come to triall by Jury the husband being an alien yet shall he not have triall per medietatem linguae or alienigenarum that is by halfe aliens as in other cases Cases where an alien is party to a suite is to bee had And whereto a wife made executor power is given to sell land of the testators shee may sell to her owne husband as was resolved in the time of King Henry the seventh where the Feoffees it being land setled in use were committed to the Fleet for that they would not execute an estate to the husband according to the wives state But of this I much marvell since the Law intends the wife so under the husbands command and subjection that it holds not her disposition of land to him by will free nor therefore of force and how shall this then be conceived to be but a partiall sale yet volenti non sit injuria and he that will put such power into the hands of a woman under coverture doth in a manner subject it voluntarily to the husbands will And it hath been held by some that even an infants or femme coverts conveyance in such case of necessitie should stand firme and unavoydable because of the condition expresse or implied that the state should bee void if no such conveyance made Touching infants and their making or being made executors BEing now to consider of disability by age for want of yeares in persons making or being made executors Let us first take view of the severall ages of men and women to severall purposes materiall in the lawes judgement and respect And first touching a woman Wangford in Henry the sixth his time shewes and other books approve that she hath sixe severall ages respected in and by the law As first the age of seven yeares for her father to have aid of his tenants to marry her Next nine years to deserve dower that is that in case she be of that age at the time of her husbands death shee shall be endowed but not if she be any thing under those yeares the Law being Physically informed that a woman at those yeares may conceive a child but not under them But of somewhat different opinion was as it seemes the Parliament in the late Queens time when it was made felony to have unlawfull carnall knowledge of any woman child under the age of ten yeares it being then conceived as I thinke that no such could consent The age of twelve yeares is a womans time for assenting or disassenting to marriage in more tender yeares had For so it appeares by divers bookes although Mr. Littleton have here no distinction between male and female The age of fourteen years is a womans time to be in wardship or not so as if she be any thing above those years at the time of her ancestors death she escapeth wardship The age of sixteene yeares is her time of comming out of wardship being once fallen under it for although had she beene full fourteene she had escaped it yet not so being at the time of her ancestors death her wardship lasteth till sixteen yeares except the Lord shall sooner marry her And lastly the full age of a woman whereby she is inabled firmely and unavoidably to make grants or conveyances is one and twenty yeares as well as for the male before which time be it that she being sole make a feofment or other conveyance or being married alien her land by Fine and her husband of fu●l age joyne with her yet is it infirme and avoydable Now of the male or man the first age materiall and setledly resolved on is twelve years for at that time each male is at the Leet to sweare his fidelity to the King this women doe not and therefore are they never said to be outlawed but to be waived because they have not this admittance into the Law which males have This hath been as I think the ground of that speech That women are lawlesse creatures The second age of males is fourteen yeares accounted by the Law the age of discretion especially materiall to two purposes viz. First that if one under that age commit an act amounting to felony yet is he to stand free

if one part be revocable so is another also And thus Revocation may spread it selfe over the whole nay doubtlesse the whole Vno flatu may be revoked as well as by parts even as a fagot may be put wholly into the fire as well as sticke by sticke And as the Velleities or disposing parts of the Will are revocable and revivable by new Publication as aforesaid so is also the constitution of Executors As if one of the Executors names be stricken out and afterwards a stet be written over his head by the Testator or by his appointment now is he a revived Executor So if the Testator expresse by word in the presence of Witnesses that the party put out shall yet be Executor but now I meane where the Executors name is not so blotted out but that it may be read and discerned for else the stet is upon nothing and if the Verball reaffirmance should renue his Executorship then must the Will be partly in writing and partly Nuncupative his name not being to be found in the written Will. Of the State of things instantly upon the Testators Death before any Will proved Here we will consider these severall things 1. What is wrought by a gift of a thing certaine and knowne as the White Horse the Red Cow c. 2. What by a Bequest to an Executor 3. What wrought by a Release in the Will to a Debtor 4. What by making a Debtor or Creditor an Executor AS touching the first viz. the bequest of a Chattell reall or personall which the Testator had in possession notwithstanding that if the said Testator had by his Deede or writing or but by word in his death-bed or before given these his goods and dyed before they had beene taken he to whom they so were given might have taken them yet in this case of gift by Will neither can the Legatee viz. he to whom they are bequeathed either take them or recover them from the Executor or a stranger taking them by any Suite at the Law for that he hath no property in them yea if the Bequest be to himselfe who is made Executor be it of Lease Plate Cattell c. They shall not vest nor settle in him as Legate but as Executor untill expresse or implyed election but made to have and take the same by way of Legacy And the reason in both case is this viz. That the Lawe preferres debts and the satisfaction of them before Legacies and ties Executors also to that rule and therefore will transferre nothing from or out of the Executor till he having considered of the State of the debts to be paid and goods out of which the same are to be paid shall finde that safely this or that legacy may take effect without making any defect in payment of debts or drawing upon him and his owne goods any damage or losse as a waster and thereupon shall assent to such Legacy Thus now is the Law taken but heretofore some opinion hath runne otherwise viz. That hee to whom any Bequest was made of a thing knowne and certaine might take it without any assent of the Executor and that when to the Executor himselfe any good or Chattell moveable or immoveable was bequeathed In case there were otherwise sufficient goods for satisfaction of debts the same should instantly upon the Testators death without any act or election by the Executor be transferred into and unto him in his owne right as a Legacy and not remaine in him as Executor As for summes of money bequeathed or so much in Plate or Ringes it is evident that they must be had by the delivery of the Executor Yet hath the Legate such an interest before delivery as that dying before payment it will goe to his Executors But as I take it no such to whom any thing certaine is given by Will can make any gift or grant of it before the Executor have assented to his having thereof Nor perhaps will the Executors assent after the grant have such relation as to make good the grant precedent why so yet more then an atturnement of a Leassee which is alike assent to the grant of another And Quere if by the out-lawry of the Legatee before the Executors assent this thing bequeathed be forfeited If without just cause an Executor will refuse to assent he is compellable by Law Spirituall or Court of Conscience yet if Spirituall Court presse to doe where is just cause to stay a Prohibit lyeth ut Credo for since executors stand liable to recovery of debts against them by Common Law It is reason that Law enable them to keepe wherewith to pay And here yet note some seeming opposition in Law for where before great difference was shewed betweene a Devise or Bequest and a gift or alienation executed in ones life time Yet the Lord Deyar reports it to be resolved that where a Lease for yeares was made upon condition that the Lessee should not Aliene in his life time that yet a Bequest of this Lease by his Will was a breach of the Condition as being an alienation in his life time 3. Of a discharge by Will to a debtor some question may be whether to perfect and make good this so as the debtor may plead it in Barre there be not requisite as in the former an assent of the Executor On the one side since this giving is a forgiving for he to whom it is bequeathed cannot otherwise have it then by way of retainer it may probably be said that here needes no such assent of the Executors as in the case where any thing is to be transferred for here is rather an extinguishment and an exoneration then a passage of a Chattell by way of Donation On the other side it is probable that it being but a Bequest and so a Legacy since debts are in Law and Conscience to be satisfyed before any Legacyes that therefore the Executor having not sufficient otherwise to satisfie his Testators debts may sue for this debt and refuse to suffer it to passe away as a Legacy And to this opinion doe I encline as best for Creditors and satisfaction of debts is by Law respected as an act greatly concerning the Testators soule But some will perhaps make a contrary doubt that although there be an assent of the Executors to this discharge yet it will not amount to a legall release for that a debt at least if it be by speciallty cannot be released but by Deede and a Will is no Deede for a Seale is not necessary thereunto though it be fit and convenient whereto I give this answer that a Will though it be not properly and legally a Deede for it may be good enough without a Seale which is an essentiall part of a Deede yet hath it the force and effect of a Deede for as a Release cannot be made but by Deede so neither can an Estate or Interest though but for yeares

in Tithes Advowsons Commons Faires and like things be granted or assigned otherwise then by Deede yet it is cleare that such a state for yeares in any of these may be given by Will as well as a Lease of Land which proves a will to have the force and effect of a Deede Of making a Debtor or Creditor Executor and first of the Debtor made Executor SUppose we then that A. and B. being made Executors the Testator was indebted to A. twenty pounds and B. was indebted to the Testator twenty pounds how doe things stand presently upon death First it is cleere that the debt of B. to the Testator stands in Law extinct this making of him Executor being a Release in Law Therfore let Debtees take heed of making their debters Executors And yet doubtlesse me thinkes suh a debter made Executor should hold himselfe restrained in Conscience from taking benefit thereof if the debt remitted there shall want to satisfie either debt or Legacie of the Testator and I doubt whether a Court of Conscience may not justly so order the Testator being perhaps ignorant of this point in Law that this debt should be released by making the Debtor Executor And what is spoken of making the debtor Executor generally the same is to be understood of making any one of the debtors Executor where there be many joynt debtors and so also where many Executors be made and but one of them is debtor to the Testator for they cannot sue without making him who is the debtor also a plaintiffe which hee cannot doe against himselfe The like Law touching Actions of trespasse or account Yet of old where one made his Bayley one of his Executors together with A. and B. who brought an action of Account against the Bayley in their two names onely Justice Herle held the action well brought This was in the beginning of King Edward the third his time but the contrary hath beene since resolved some also have held that though in the life of this Executor who was a debtor he could not be Sued yet after his death the surviving Executors might sue his Executor but that cannot be as I take it for that the debt was utterly extinct by the making of him Executor as if the Testator had released it to him yea though this Executor dyed before he did ever Administer or prove the Will And like extinguishment of the debt if the Creditor marry with one of the Executors of the debtor yet was there an Action of debt maintained temp Edward 3. By the Husband and Wife against the Husband and other Executors upon an Obligation by the Testator to the Wife before her marriage But if a debtor take Administration of the goods of his Creditor this mee thinkes should not discharge him but that his debt should stand as assetts in his hand because the intestate did no act to free him from the debt The Debtor or Creditor made Executor THis making of the Debtee Executor and so the party who both should pay and be payed the debt giveth him clearely power to pay himselfe before any other if his debt be by Specialty or upon Record Nay some have held that so much of the goods of the Testator shall be altered in property out of the Executor as Executor into him as Creditor but how that can be I cannot see For whether shall it be satisfyed out of the Lease and Chattells reall or personall whether out of the Corne in the Barnes Cattell in the Fields Plate or Housholdstuffe this till some election made by this Debtee Executor cannot be knowne nor shall be effected by any operation of Law preventing the Executors election in taking his satisfaction where and how he will For certainely as an Executor hath election to pay which Creditor he will first so hath he election to pay and satisfie himselfe by what part of the Testators goods he will yet perhaps if there be ready money in the Executors hands there shall be an alteration of the property of so much thereof as was owing by the Testator to the Executor And if there come not to the hands of such Executor sufficient to pay himselfe he may have an Action of debt against th' other Executor or the Heire as by some hath beene conceived yet let it be well advised of whether if he doe Administer at all and specially if he pay himselfe any part he have not thereby barred or disabled his Suite for the Residue But if he refuse to Administer at all it were very unreasonable that he should not be able to sue the other Executors for so a Debtor might by subtilty make his Creditor an Executor with others and take a course that his goods should come onely into the hands of those others so as the Debtor could not pay himselfe and consequently if he could not sue the other Executors he should thus be stripped of his debt by a sleight Quaere if he may bring the action in the name of the other Executors onely the Will being proved in his name as well as in the names of the rest or whether the Action shall be brought in his name also and then he be severed at his owne prayer But against the Heire there is none to joyne with him and him may he sue if he have not Administred as Executor this admitted that the Bond extend to the Heire which without expresse words it doth not though for the Executor it be otherwise Thus having considered of the State of things before and without any Will proved or other act done by Executors wee should now come to the point of proofe but two things pertinent to it are in Order precedent 1. What may be done by or to an Executor before proving of the Will 2. Of Refusall and the things incident thereunto Before probate what may be done by or to Executors AS to this it is cleare that before proving of a Will by the Executor he may seise and take into his hands any of the goods of the Testator yea enter into the house of the Heire if not locked so to doe and to take the specialties of debts and generally he may doe all things which to the Office of an Executor pertaineth except onely bringing of Actions and Prosecution of Suites He may pay debts receive debts make acquittances and Releases of debts due to the Testator and take Leases or acquittances of debts owing by the Testator Yea if before such proving the day incurre for payment upon bond made by or to the Testator payment must be made to or by this Executor though no Will be proved upon like payne of forfeiture as if the Will were proved Also an Executor may before Probate sell or give away any of the goods or Chattells of the Testator And whereas the assent of an Executor is necessary to the setling and Execution of a Legacy as