with his sithe come as a Midwife to helpe her delivery if then by the hasty death of the Owner before Action brought this great Trespasse should be dispunishable it were contrary as me thinkes to the purpose of the said Statute and a great defect in the Law Yet here perhaps touching this a fourth difference may be or arise out of the time of the death of the Owner viz. where he dyeth before time of Mowing and where not for Dato that in the former case because if such destruction or consumption had not beene yet the Owner dying before severance this should not have come to the Executor but have gone with the soyle to the Heire that therefore the Executor who is not damnified should recover no dammages Yet in the other case the Owner living till after Hay time clearely passed viz. till the end of August me thinkes now since this fruite of the Meddowes wombe should have beene a Chattell severed had not this Trespasser made unlawfull prevention Therefore the Executor to whom the same should have come towards the performance of the Will should have out of the said Statute an Action and remedy reached unto him to recover recompence in dammages for this wrong done in retardationem Executionis Testamenti A fifth and last difference may perhaps be in the state of the Owner for Posito that where the Land is his Freehold or Copyhold Inheritance no Action should be given to his Executor for Wood or Grasse taken or destroyed in his life time yet where he is but Tenant for yeares Guardian or Tenant by extent so as the very state in the Land was to come and is come to the Executor together with Quicquid plantatur solo me thinkes the Executor should have together with the state in the soyle the Action to punish the Robber of or Trespasser upon the soyle Thus having scanned and sifted to the best of my ability all differences and circumstances of this point how farre I am wide and wherein right Aliorum sit judicium or rather Altioris esto judicii But this is cleare that wheresoever Executors doe recover any dammages for trespasse or other wrong done to their Testator the money recovered at least if Execution be had or money received will be Assets in their hands as well as debts recovered upon Bonds or Bills or Lands by them taken in Extent upon Statutes Recognizances or Judgements Yea without ever having these moneyes Executors may make them assets in their hands viz. by making Releases or Acquittances or acknowledgement of Satisfaction for this amounteth to a Receipt and chargeth the Executors towards the Creditors with the whole penall summe though happly they receive but part as the principall or some like proportion Therefore there is great caution to be used by Executors in this kinde that unlesse they be sure they have Goods sufficient to pay all Debts and Legacyes they make no Release Acquittance or Acknowledgement of Satisfaction for more then they doe receive be it debt or dammages And the like caution to be used by them touching submission of debts or dammages to arbitrement whereby discharges of the same may grow for the submission to the Arbitrement being their voluntary act although the Arbitrators by their judgement doe discharge the debt or dammage in part or in whole yet shall the Creditors have like remedy thereupon against the Executors as if they had released or which is more received the same Other Actions there be of discharge which as the Testator himselfe in his life time might have had so may his Executor after his death viz. Writs of Error Attaint Disceyt Avdita Querela Identitate nominis But this last is given by Statute Whatsoever is regained by any of these wayes as unduely lost by the Testator shall also be Assets Speciall cases pertinent to the Premisses 1. Chattells come to Executors from the Testators yet not Assets 2. Assets which be no Chattells 3. Things in Action and in the personalâ—y turned into Chattells Reall e contra AS to the first I exemplifie thus A. makes B his Executor and dyes B. makes C. his Executor and dyes The Goods left by A. to B. as Executor farre exceedes his Debts and Legacyes or let us suppose no debts nor Legacyes of A. and that B. dyeth much in debt above the Goods hee leaveth and did make no alteration of the property of the goods of A. but meerely left them to C. his Executor Now shall not the Goods which came to B. as Executor of A. and so from B. to C. be lyable in Law to pay the debts of B yet in Conscience me thinkes they should and that C. should not receive them to his owne use as in Law he may where A. left no debts But if A. making B. Executor did also by his Will give him all his Goods and he in his life time made election to have them as Legatee or by his Will did so dispose of them or appoint them to goe as the goods hee had as Executor could not be given or disposed Now by this election they were altered in property from being his as Executor and so as his owne goods should be liable to his debts But things in action could not be so given or disposed viz. Debts c. yet if D. were indebted to A. one hundred pound and B. his Executor tooke new bond of him or another for it giving up the old Bond now was it become his owne duty and so shall stand in his Executor Another instance of this thus If A. patron of the Church of D. grant to B. the next avoydance the Church becommes voyde B. dies before he presents his Executor presents and hath the benefit of preferring his sonne or friend yet shall this make no Assets in his hands for payment of debts for that hee could not lawfully take money to present But if B. had dyed before the Church had become voyd Then because the Executor might lawfully have sold it the value should be Assets in his hands as I conceive except perhaps the incumbent had died so hastily after B. that the Executor had not time convenient to finde out a chapman and to sell it If in the other Case a stranger had presented and got his Clarke admitted and the Executors of B. had in a Qua. Imp. recovered dammages the money so recovered should have beene Assets Thus much of the first viz. that some things of the nature of Chattells may come to Executors and yet not be Assets Touching the second viz. that some things may be Assets in the hands of Executors which yet are no chattells I shall give but two Instances First where a man leaveth a Villen for yeares to his Executors and the Villen purchaseth Land in Fee-simple and the Executor entreth into the Land now hath hee Fee simple therein and this Land is Assets for payment of the Testators debts
nothing it was resolved that A. should not have iâ— for their lives but for his owne onely This Case was said to come very close in reason to the Case in question for as heere the intent of the Lease was that B. and C. should bee estated for their lives and since that could not bee therefore the naming of them should bee utterly voyd and as if they had not at all beene named and their lives shall not stand as a measure for the estate of A. So in thother Case the intent of the will being that the Lease or Land leased should goe to the heires Males of the body first of Alexander and after of Raulphe since this cannot bee therefore the words and name of heires males should stand for a meere blancke and cipher and not to measure out any state to the said Alex. and Ra. and their Executors and assignes Also it was said on the defendants part that an estate for life in the judgement of Law is of so short and uncertaine continuance that if A. make a Lease to B. for his life and after makes a Lease of the same Land to C. for yeeres now shall not this latter Lease bee voyd absolutely for any part of the terme but shall stand in expectance of the death of B. and as soone as hee dyeth shall take effect immediately whereas if the Lease to B. had been for ten yeeres or any like terme then the Lease to C. should have beene voyd for so many yeeres of his terme thus it appeares that a State for life is very momentary in the judgement of Law and not reputed of any certaine continuance so much as for a day but it is otherwise of an estate tayle so as if A. having given Land to B. in tayle doth after without indenture which makes an Estoppell make a Lease to C. for xxj yeeres and then B. dyeth without issue during the terme yet shall not the Lease take effect because it was utterly voyd at the first making For an estate tayle being a state of inheritance may in the intendment and judgement of Law have continuance for ever as appeares both by the Case of Adams and Lambert where it is held within the Statute of Chaunteries which speaks of gifts to have continuance for ever Therefore a reversion upon an estate tayle is no assets nor giveth cause of receipt otherwise in all these Cases it is touching a reversion expectant upon a state for life Againe it was said by the defendants councell that an estate may bee limitted to A. and his heires during the life of B. with remainder to C. as in Chudlies Case was resolved but if Land bee given to A. and his heires so long as B. shall have heires of his body or heires males with remainder over to C. this remainder is utterly voyd So as there is in the judgement of Law a great difference betweene the largenes and continuance of an estate tayle and of an estate for life And if which is worth the observing a feâ— simple cannot afford a remainder to bee drawne out of it after such a gift to one and his heires during the continuance of an estate tayle or of the measure thereof much lesse can a terme yield such large thongs to bee cut out of it as a remainder after an estate to one so long as hee shall have heires of his body or heires Males which is all one And in this case the remainder was held voyd by Baldwin and Shelley though Engl field were of contrary opinion as the Lord Dyer sheweth Further it was said that if such a conveyance by will should stand good it would raise a perpetuity not to bee cut off by any recovery But whereas the case of Hammon hath beene related before so by way of admittance it was argued as a gift and bequest to Al. Ham. and the heires Males of his body with remainder in like manner to Ralfe The truth of the case was that the words of the will were onely to Alexander and his heires Males not speaking of his body and so to Ralfe which as was urged by the defendants counsell made the Case stronger against the plantifes for admit that the former way Alexander should have had but a state determinable upon the continuance of his issue Males yet here not so Since the reason why in Willes such a devise being made the Law should supply the words of the body is onely to make an estate tayle to the issues Male according to the Testators intent Now in this case of a terme for yeares so bequeathed no estate tayle could possibly bee though these words had beene in the will and therefore the motive to the Law fayling no such supply will bee made by the Law since it would bee to no purpose consequently here was neither state tayle nor issues or heires Males of the body on whose continuance this state of Alex. should bee determinable Therefore it was an absolute and totall bequest of the terme to Alexander for ever viz. so long as the Terme should continue for as a bequest to one for ever is asmuch as a bequest to him and his heires so a bequest to one and his heires is as much as if it had beene to him for ever And this Case after sixe arguments on each side at the Barre if I much mistake not was upon argument by the Barons adjudged for the defendant by the Lord chiefe Baron Tanfeild and M r. Baron Bromley M r. Baron Denham who onely heard as I take it one argument on each side made of purpose in respect of his comming into his place after the former arguments being of the contrary opinion and the judgement proceeded upon the point formerly touched that as this case was the state of Alexander did not end by his death and remaine to the Executors of Ralfe Other points were stirred which will bee touched upon other divisions after in this Chapter It will be observed that I doe more fully expresse reasons and points inforced on the defendants part then on the plaintifes whereof let these two reasons bee accepted First That I better could relate that then the other being the first who argued for the defendant and hearing little of that which was by others said on either side after nor hearing the Courts Nec ad hoc conductus nec pedibus fortis Secondly the labour did lie on the defendants part to prove that this Case differed from the common case of devise to one for life with remainder to another Wee are now come to the sixt point viz. that where House or Land held by lease or the proffits thereof or the lease or terme it selfe which in a Will makes no difference is bequeathed to A. for life or for some part of the terme with the remainder to B. and the Executor assenteth that A. shall enjoy his bequest whether this shall enure to B. also since without the Executors assent no legacy can take
29. Eli. Inter Brooker Carter in Ba. com 9. Ed. 4. 33. The Booke calls him Cardinall of Canterbury 9. Ed. 4. 47. Selling Land as Executor is Admin Dyeâ— in Case of Greisbrooke Foxe Plow com 280. b. Pas 7. Eliz 36. Hâ—n 6. f. 7. 8. Micâ— 27. 28. Eliz 〈◊〉 Case in com 〈…〉 A. being Executor did adminâ—ster and yet would not prove the Will B. tooke Administration and being sued for debt did pleade the matter supra and held a good plea and was found for him before â—ust 〈◊〉 ad Oxâ—n in aestat 1. Carâ—l reg 36. Hen. 6. 7. 20 〈◊〉 4 17. and 21. â— 4 5. 21. Ed. 4. 5. 21. H. 6. 19. 20. 33. H. 6. 31. 8. 1. Eliz. Dy. 166. 13. Ed. 3. Exâ—c 91. 3. 4. Ma. Dy. 135 26. H. 8. 7. 8. 20. H. 7. Kelw. 63. 21. Ed. 4. 5. 20. H 7 f. 5. a. 9. Ed. 4. 12. 13. 33. H. 6. 31. 4. Cooke lib 5. f. 2â— Cont. 18. E. 2. Bre. 8â—7 22. Ed. 3. 19. 15. Ed. 3. Exec. 8. 41. Ed. 3. fol. 〈◊〉 21. Ed. 4. fâ—l 24. 42. Eliz. Co. 9. f. 36 37. 4 5. 〈◊〉 Ma. Dy. â— 69◠〈…〉 2â— â— â— 4. 23. 24. 33. Hen 6. 38. a. 〈◊〉 9. 37. 6. 32. Hen. â— â—25 27. Hen. 8. 11. 〈◊〉 curâ—am 9. Ed. 4. 33. Co. 9. fol. 36. 2. R. 3. Fitzh 4. Co. lib. 9. fol. 43. 11. H. 7. 12. Flow. Coâ— 279. 1 Cor. 4. 2. Acts 20. 27. Vide â—ol proxim If Bona Notabâ—â—â— both in Canterb. and Yorke Canon 92 93. â—1 Eliz. Goods considerable or 〈…〉 Hil. 37. Eliz. M. Comâ— Da. Vide 13. 14. Eliz. Dy. 305. 22. Eliz. 9. Ed. 4. 47 22. Ed. 4. 50. 22. H. 6. 52. Plow Com. 282. 44. Ed. 3. 32. 19. Ass p. 2. Plow Com. 281. a. 283. 18. H. 6. 22. 2. 9. E. 4. 33. 47. Not to make good a Release made before Co. lib. 5. 28. 36. H. 6. 8. 2. Ma. Dy. 110. See also 31. E. 3. cap. 11. An Administr shall account as an Executor Fitzh Ex. 91. and 837. viz. 18. E. 2. tit Briefe 48. E. 3. 14. 15. Of a duty resting in account it is said the Legatee shall have remedy by account in the Spirit Court 81. Ed. 4. f. 3. Moyle 4. H. 7. 15. per Wood. 9. Ed. 4. 47. Dost Stu. 78. b 21. Ed 4. 22. Plow Com. 544. 4. H. 7. 15. Kelw. râ—p 64. a. Temp. E. 1. Assise 〈…〉 37. Ass p. 〈◊〉 4. E. 3. Ass 166. Brâ— Chaâ— 15. â—9 E. 3. 37. So Manwood if granted for life it is but a chattell Plow coâ— 524. 〈…〉 88. Reg. orig f. 102. There is mentione that the prisoner was to have a 190. l. for his ransome Bro. no. ca. 295. tis Property 38 1. H. 6. cap 5. 10. E. 4. 14. 15. Come of wilde ones 22. H. 7. Relw. rep f. 88. 118. co lib. 11. fo 50. 18. H. 8. 2. 10 E. 4. 14. 15. 18. E. 4. 8. So of young Hawkes in the nest It is felony to steale these Ergo. they be goods So an Hunters horne a Falkoners lewer Hares Deere Fesants Partridges wilde Duckes c. are good â—eate Fo. 142. Hen. 8. fol. 3. Rootes of Carrots Parsnips Land sold wherâ—n is ripe Corne For he was Tenant for life in effect The Wife also shall have convenient apparell 33. H. 6. 31. 2. Eliz. Dy. Co lib. 11. f 48. Of Houses or things about the House 42. E. 3. 6. â—1 H. 7. f. 26. 42. F. 3. f 6. H. 37. Fliz. Austins case 〈◊〉 lib. 4. f. 63. 64 Things in Gaâ—dens 〈…〉 2. 36. H. 6. 2â— 18. E. 3. 4. â— H. 7. 15. Quae. If sole use that way make a difference or not See Stat. 〈◊〉 H. 8. cap. 17. Remedy for Rents of Inheritance or for life A Church of the Testators Inher become voyd in his life comes to the Executor as a thing in action but is not Assets for not vendible 11. H. 4. 32. 45. E. 3. 3. 〈◊〉 na br 59. 4. E. â— c. 7. And the like given to Executors of Executors pâ—r 〈◊〉 25. E. 3. c. 5. 17. E. 3. Fit 106 cap. 21. meant 〈…〉 21. H. 6. 1. but 〈…〉 contra 21. H 8. cap 19. 4 E. 3. The B. of Coâ—â—nt â— and Safes case M. 32. 33 Eliz. in com ba. So of Ravishment Dl. gard 7. H. 4. â— 7. H. 4. 6. Erect 〈◊〉 Tild Do â—lauso fracto meerely it lyeth not 11. H. â— 3. This Tâ—riaÌ„ Iust did very judiciâ—â—â—sly urge in Sâ—les case supra At least me thinkes Action upon the case here and before should be maintaineable 3. H. 6. 3. Litleton fo 42. a. So held in Sales case of dammages in Qua. impe recovered conte of the presentment Releasing 13. Ed. 3. 〈◊〉 9â— Error 1â— H. 4. 65. 46. E. 23. Yet upon a verdict in Qua. imp the Wife not the Executor of Husband did seise 9. H. 6. c. 4. Or if a strange usurpe in his life and he dying his Executor recovers in a Qua. imp as by Sale was done infra Mich. 32. and 33. Eliz. So held in Sales Case in com ba. Vende◠〈◊〉 pâ—test emerat ipse prius 22. H. 8. 〈◊〉 Villenage 46. If he dye how shall this be Assets in the heire 3. H. 63. and so 2. Hen. 4. 21. If by Feoffment per Markam cap. Iâ—st contr Rickâ—ill See 9. El. Dy. 264 9. H. D. 264. 14. H. D. 31â— Note Diff. â—1 Hen. 7. Plowd Com. 11. H. 6 35. per Babington 24. E. 3. f. 35. 32. H. 6. 34. â—itl tit villenage 41. 42. 10. E. 4. fo 1. Yet 39 H. 6. f. 15 A release of all actions by an Executor extincts actions as Executor But Frowicke iâ— against it in 20. H. 7. Kâ—l 64. See these so resolved in Plow com 525. intâ— Râ—ansby Grantham P. 20. Eliz. This may be in his name onely out of whose possession the goods were taken Co. lib. 5. fo 32. 34. H. 6. 43. Co. lib. 9. 88. b. See this also Ploâ— com 520. a. 21. Hen. 6. 30. If other goods taken among them he is excused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded 43. E. 3. 24. Brâ— 145. Makes a quae if it be locked Plow com 280. 43 Ed 3. 2. 10. Ed. 4 5. 6. Of the Deed execution first 12. H. 4. 7. Hen. 4. f. 31. See Bro. Exe. â— 24 Co. l. 3. f. 90. 91. To like purpose see more Litl f. 77. b. 2. Eliz. Dy. 281. Plow com 291. 21. Hen. 7. 4. A Are as one person therefore cannot plead severall pleas 〈◊〉 abatement 3â— H. 6. 17. 9 H. 6. f. 44. 38. E. 3. 9 Bro. Ex. 13. Brâ— Ex. 20 21. Therefore one Executor sued iâ— he plead that there is another Executor not sued must plead that he did administer 9. H. 6. 44. Bro. 13. 33. H. 6. 38. â— â— 20. 32. E. 3. quid jur 〈◊〉 5. â—3 H. 4 Aid â—86 A 9. Ed 3. cap. 3. A B But not if he
him in service till a fit time of providing him a new Master and fit for him not to depart suddenly Now for things personall without life These are evident viz. all Householdstuffe Implements and Vtensills Money Plate Jewells Corne Pulse Hay Wood felled and severed from the ground Wares Marchandise Carts Plowes Coaches Saddles and such like moveable things More doubtfull Cases touching things personall FIrst touching things living If the Testator had any tame Pigeons or Deere or Conies or Fesants or Partridges these all aswell as Chickens shall goe to the Executors so though not tame if they were taken and kept alive in any Roome Cage or like Receptacle as Fesants and Partridges often be so fish in a Trunke as also young Pigeons though not tame being in the Dovehouse not able to flie out yet their Dammes the old ones shall goe to the Heire with the Dovehouse And if the Testator had any reclaimed Hawkes they also as Chattells Personall shall goe to the Executor because they are things commonly vendible And whereas Hounds Greyhounds and Spaniells be not so commonly bought and sold nor so anciently have beene yet are they now growne to be a Marchandize and why not for although they be for the most part but things of pleasure that hindereth not but they may be valuable as well as Instruments of Musicke both tending to delight and exhilarate the spirits A cry of Hounds hath to my sense more spirit and vivacity than any other Musicke Adde hereto that there may be some profit and advantage gotten by them both quoad adeptionem boni ademptionem mali the getting of some good food and the preserving of others as Lambes Conies Fish Pultry by killing Foxes wilde Cats and others which destroy them And wee know that money is recoverable in dammages for taking away such or a Mastiffe serving to keepe an house So of Ferrets to catch Conies c. Therefore they are valuable But it may perhaps be objected that none of these above are Cattell and therefore not replevisable consequently no property in them for when more then one living Chattell is distrained the replevin is to be by the name of Averia signifying Cattell For answer not to insist that one may have property in divers things whereof no Replevin lyeth as Corne or Hay not in Sackes nor Cartes money not shut in bagge nor box c. I further say that even the word Averia may be applyed to these for so I find it to Hens and Capons in the Booke of Entries viz. in the writ of Curia Claudenda where the Plaintiffe complaines of the Defendants not making his Mounds per quod averiaipsius A. viz. Capones galinae alia Averia ipsius A. that is whereby his Cattell viz. Capons and Hennes and other his Cattels came into the Plaintiffes House and Garden to his dammage c. And both Newport and Newdigate hold that a writ of replevin lyeth of such things though Brudenell were of contrary opinion yet he also held an action of Trespasse maintainable for taking of them and therefore admitted a valuable property in them Now come we to things without life and first to those abroad in the Fields Put the case that a man dyes in Iuly before Harvest I meane seised for life or in Fee or Taile in his owne right or his Wives or estated for yeares of Land in the right of his Wife being sowne with Corne or any manner of Graine the common saying is Quicquid plantatur solo solo cedit yet this shall goe to the Executor of the Husband and not to the Wife or Heire who shall have the Land but Hay growing viz. Grasse ready to be cut Apples Peares and other fruite upon the Trees shall goe to the Wife as also if they had beene upon a mans owne Land of Inheritance they should goe to the Heire though the Corne should goe to the Executor The reason of difference is because this later comes not meerely from the soile without the industry and manurance of man as the other doe and I take Hoppes though not sowne if planted and Saffron and Hempe because sowne to pertaine as Corne to the Executor All those yet shall passe to one to whom the Land is sold or conveyed if not excepted though never so neere reaping felling or gathering But what if the Wife had the Lease for yeares as Executor to some former Husband or other friend and the Husband after sowing dyes who then shall have the Corne Certainely the Corne shall goe to the Executor of the last Husband at least so much as is more then the yeares value of the Land or the making it up by addition of other things for the value is to be assetts for payment of debts and Legacies Put the case againe that the Husband and Wife were joynt-joynt-tenants of the Land and then the very Corne growing shall survive to her together with the Land and though the Husband sowed it yet shall it not goe to his Executor Being in consideration of things growing on the ground let us not forget to thinke of Trees sold by I. S. seised of the Inheritance of the Land to I. D. who dyeth before felling this Interest is a Chattell which shall goe to the Executor and not to the Heire of I. D. but some colour may be that these because fixed to the soyle and Freehold are reall Chattells as the Interest in Land is and not personall So also of Trees Excepted by him who selleth the Inheritance of the Land but in both cases I conceive this interest to be personall and not reall for that as it is a propriety of Chattell in the Vendee or Vendor with exception it stands in consideration severed and abstracted from the soyle or ground where the Trees grow though the Trees be not actually severed by the Axe from their mother Earth But if the Lessor for yeares or life except the Trees these continue parcell of the Freehold and Inheritance And after Corne reaped and before the Tithe set out the Inheritor of the Tithe dying I thinke the Executor and not the Heire shall have the Tithe after set out Now Let us come home to the Testators house and see in and about it some doubts what pertaines to the Heire and what to the Executor Question hath beene both of old and of late touching Coppers Leads Furnaces Fat 's for Dyers or Brewers Pales Rayles Glasse in Windowes Tables Dormants Wainscotes Doores Lockes Keyes and such like to whom these should goe whether to the Heire or Executors And in the latter end of Henry the 7. his time an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall the Heire brought an action of trespasse against him for so doing and it was adjudged for the Heire viz. that this was to goe as part of the Freehold and Inheritance to the Heire and
A. posessed of a Lease for sixtie yeares of one hundred pound Land mortgageth it for five hundred pound or be it that the mortgage or pledge be of a Jewell or peece of Plate for halfe the value and that before the day limitted for payment and redemption A. having made B. his Executor dieth and B. at the time and place maketh payment as was conditioned Now the question is whether this Lease Plate or Jewell being worth much more than the summe for which it was mortgaged shall be in him wholly in his owne right and to his own use or partly if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies Here it must be cleerely admitted that B. was inabled to this redemption onely and meerely by the Condition annexed to the mortgage or pledging It must also be admitted that this Condition and the power or interest to take benefit thereof to him came and was derived onely as Executor of A. This being premised it must needs follow as to me it seemes that the Condition working and having his operation in the redemption to destroy the Grant mortgage or pledging it must needs make these againe the Testators goods in statu quod prius and so to be in B. as Executor since in that right onely he was intituled to take benefit of the Condition For what is it which hindred before this from being the Testators goods nothing certainely but onely the force and strength of the mortgage or pledge Now by the redemption that is become voyd hath it losts its force therfore the property of these things must needs now be as if no such mortgage or pledge had beene or as if it had at the first beene voyde and of no force Thus must the Condition worke for him who made it viz. A. the Testator and those of the contrary opinion in the time of King Hen. 7. doe yet say That by this redemption the Testator is so much in debted to the Executor as he disbursed for the redemption which could stand with no reason unlesse by it the property and interest should be reduced to the Testators behoofe That thus it is is also proved as to me it seemes by the Case of mortgage of Inheritance upon which the heire making payment according to the condition is not now in as a new purchasor but as heire so as he shall have his age and be in Ward even for this Land Yea it shall be Assets in his hands for satisfaction of his Fathers or other Ancestors debts which in some respect is a harder Case than that of the Executor for he hath meanes to satisfie himselfe of the money disbursed either out of the thing redeemed or other goods of his Testator but the heire hath no such meanes Yet it will be asked how the Executor can be free from mischiefe for if this thing redeemed be intire as the Cup or the Lease the whole will be taken in execution for the Testators debt To admit this yet here is one cleare way of remedy viz. the Executor may before such Execution sell the thing and so pay himselfe and retaine the surplusage to the Testators use and the like of this is frequent in use viz. for Executors to pay of the Testators debt with their owne money and to make themselves satisfaction out of the Testators goods Besides it not impossible that this redeemed thing should be thus in interest parted that answerably and proportionably to the summe disbursed for redemption with reference to the value of the thing redeemed a moyetie or third part or three parts therof should be to the Executor in his owne right as his owne proper goods and the rest in him as Executor As posito that A. and B. were Tenants in Common of such an entire Chattell A. maketh B. his Executor and dieth Now hath B. one moyety as Executor and another as his owne proper and upon a Judgement against him as Executor that moyety onely which hee hath as Executor must be taken in execution and here may be remembred how in execution of a Judgement or levying of an Amerciament out of an intire Chattell of more value than the summe to be levyed the whole is to be sold and the surplusage above the debt or Amerciament is to be delivered backe to the owner For in all this debate we must presume the thing redeemed by the Executor to be of better value than the summe payd else wee may easily admit the whole to the Executor Againe the Lease for yeares is not so intire a thing I meane the Land let but that thereof partition may be made yea inforced by Action betweene joynt tenants and Tenants in Common But here will be objected the Case of redemption by the daughter and heire who though she have a brother borne after so as now she is no longer heire yet she shall as the Booke saith retaine the Land redeemed from the heire as a Perquisite or Purchase As for this which I will not oppose the Law so frameth to the favour of the daughter because of great mischiefe to her if being stripped of the rest of the Inheritance by the birth of a brother she should also lose that which her money had redeemed without having any remedy to have her money againe or any recompence for it but in the other Case there is no such mischiefe for that the Executor may pay himselfe as hath beene shewed Now on the other side if the Case shall be understood that the redemption was by payment after the day then will I easily admit that the property or interest is in the Executor to his owne use or that the Condition now having no power to reduce it backe or to operate any thing It is rather a re-emption than a redemption since it was at the Will of the Mortgagee to dispose it at his pleasure and any stranger as well as the Executor might thus have redeemed viz. repurchased it therefore onely Equity and not Law in that Case can make any part of the value Assets in his hands And so also I thinke if wee should admit in the other Case of payment at the day that the property of the chattell is to the Executor as his owne and not his Testators goods no part of surplusage of value can in Law be Assets howsoever in Equitie Lastly if the Executor redeeme by payment at the day with the Testators owne money or goods none will doubt but that the thing redeemed is in him as Executor and the money by him payd for redemption is well Administred the goods redeemed being of better value But this way it makes no difference whether the whole value of the goods redeemed shall be held Assets and the money payd for redemption stand drowned therein or that that summe be still adjudged in the hands of the Executor as Assets and onely the surplusage of the thing redeemed over and above the summe payd for redemption
Things accrued by Covenant or Assumption IF A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be in him as Executor and consequently as Assets This is proved by the Judgement in the Case betweene Chapman and Dalton in the late Queenes time Yet I confesse that it is not expressed in the resolution of this Case that this Lease should be Assets but that the Executors should have the Terme as Executors which implyeth as much in my understanding and the declaration whereupon the Defendant demurreth sets forth the breach of that Covenant to be in retardatione executioâ—is testament so as the dammages thereupon recovered viz. 300 and 30. pound were Assets and consequentâ—y also should the terme have beene in â—ew and recompence whereof these dammages were given The like Law if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Mault or so many loades of Coales or Wood or any other Wares or Marchandise and this is not performed in the life of B. but after to his Executor it shall be to him as Executor and shall be Assets in his hands as well as the money recovered in dammages for not performing should have bene Of things accrued by remainder or increase IF a Lease be made to one for life the remainder to his Executors for yeares and he dieth this will be Assets in the hands of his Executors though it were never in the Testator as was in the later end of the late Queenes time resolved by three Justices the Lord Anderson onely being of a contrary opinion and there it was said that Cranmers Case wherein the contrary in effect was resolved was of little authority for that there were first two Judges against two till after Mounson changed his opinion upon a conceit that there the estate was by way of use which could make no difference like law where a Lease for yeares is by Will bequeathed to A. for life and after to B. who dieth before A. Although B. never had this terme in him so as that he could grant or dispose it yet shall it rest in his Executor as his goods and be Assets As for a remainder for yeares so in the Testator that hee might grant or dispose it at his pleasure no doubt can be thereof though the same fell not in possession to the Testator in his life time yet no scruple nor doubt can be but that this is Assets to the Executor even whilst it continues a remainder and before it falleth into possession because it is presently valuable and vendible Nor much of other nature to these are the Cases where the Executor Marchandizing with the goods of his Testator maketh gaine thereof So if the Sheepe or other Cattell of the Testator doe breed viz. beare Lambs Calves Colts c. after the Testators death even these which were never in the Testator shall yet be Assets and so the Wooll growing upon the Sheepe after the Testators death But there is one Case worth the consideration and worthy of some doubt as I thinke and that is this One leaveth to his Executor a Lease for yeares of Land worth twenty pound by yeare and the Executor keeping this in his owne hands one yeare after the Testators death doth make thereof thirty pound in cleare gaine above all charges now whether as to a Creditor this whole thirty pound shall be Assets or onely twenty pound and the Case simply thus put shall be understood of an occupying and manuring without any stocke of the Testators and then if the Executor did stocke it with his owne Sheepe or other Cattell as he must have borne the losse by rot or death so is it reason that if the manurants prove gainefull he reape the fruits thereof in recompence of his adventure and of his industry skill and good husbandry But if the Testators stocke of Sheepe and Cattell were as of necessitie or for the better advantage of the Testators estate continued upon the Lease Land then is it reason that the gaine or losse whethersoever of them God sendeth doe redound to the Testators estate Like Law as I thinke if an Executor finding that he cannot instantly after the Testators death let the Lease Land neare the value shall therefore buy seede-Corne and hire the plowing c. But it may be said that the Lease hath one entire valuation at the first upon the appraisement To this I answer first that the value upon the appraisement is not binding nor much respected at the Common Law if it be too high it shall not prejudice the Executor if too low shall not advantage him but the very value found by Jury when it comes in question whether the Executor have fully administred or have Assets or not is that which is binding Next I say that if a long Lease come to Executors of Land worth an hundred pound by yeare and no sale is made thereof by the space of a yeare or more now the terme continuing of the like value as at first it is no reason but this hundred pound raised the first yeare should goe towards the payment of debts and Legacies rather then any of them should be unpaid This thing I meane the knowledge of them are usefull two wayes viz. First to give light to Executors to discerne what unto them of right pertaines Next to shew unto Creditors and Legatees what and how farre things shall be Assets that is to say goods to enable charge and binde Executors to pay debts and Legacies For whatsoever any of these wayes commeth to the Executors from their Testator or is recovered by any of these Actions shall be in their hands Assetts the Cost and charges of recovering deducted CHAP. VII What manner of Interest an Executor hath in his Testators Goods and Chattels and how different from the common Interest they or others have in their owne proper goods THe Interest which an Executor hath as Executor in the Goods of his Testator is much different from the absolute proper and ordinary Interest which every one hath in his owne prope Goods as may well appeare in and by these points 1. Although if a stranger take away these Goods the Action of Trespasse for the Executor is of generall forme Quare bona sua cepit calling them his Goods whereas a man Outlawed in Debt c. or convict or attainted of felony or treason forfeiteth all his owne Goods yet these which he hath as Executor shall not be forfeited If a Villen be made Executor his Lord cannot take these goods though he may take all the Villens owne Goods and for taking such Goods or for a debt due to the Testator a Villen may sue his Lord. Nay if the Executor grant all his Goods some good
debts should thus be preferred before any subjects viz. for that the treasure Royall is not only for sustentation maintaining of the Kings household but also for publick services as the warres c as appeares by the statute 10. Rich. 2. cap. 1. And therefore it is as I conceive that Bracton saith of the treasures or revenues Royall Roborant coronam they doe strengthen or uphold the Crowne And for the like reason as I think did God inact touching the possessions of the Crown that if they were given to any other then the Kings owne Children they should revert and come back to the Crowne the next Jubilee which was once in fifty yeares sed de hoc satis But this priority of paiment of the Kings debt before the debt of any subject is to be understood onely of debts by or upon record due to the King and not of other debts If any ask how the King should have any debts which shall not be of record since by the statute 33. of King Hen. 8. cap. 39. it is inacted that all Obligations and specialties taken to the use of the King shall be of the same nature as a statute staple To this I answer that there may be summes of money due to the King upon wood sales or sales of Tinne or other his minerals for which no specialty is given so also of amersements in his Courts Baron or Courts of his Honours which be not Courts of record The like of fines for coppyhold states there So of the money for which straies within the Kings Mannors or liberties are sold Also as the law hath lately beene taken and ruled in the Exchequer even debts by contract due to any subject are by his outlawry or attainder forfeitable to the Crowne Yet neither these nor those due to such person outlawed or attainted by bond bill or for arrerage of rent upon lease is or can be any debt of record untill office thereupon found for although the outlawry or attainder be upon record yet doth it not appeare by any record before office found that any such debt was due to the person outlawed or attainted Thus are not these debts to the Crowne to have priority of payment before the subjects debts though the Kings debts of record are so to have so that if a subject to whom the testator was indebted by specialty sue for this debt the executor must pleade that the testator dyed indebted thus much to the King by record more then which he left not goods to satisfie if the truth of the case so be for if there be sufficient to satisfie both then the subject creditor is not to stay for his debt till the Kings debt be levied And if the subject creditor sue execution upon a statute so that the executor hath no day in Court to pleade this debt to the King then is the executor put to an audita querela wherein he must set forth that matter and so provide for his owne indempnity But what shall we say of arrerages of rent due to the King surely where it is a feefarme rent or other rent of inheritance I see not how it can come under the title of debt since for it no action of debt is maintainable so long as the state continueth in him to whom it grew due and I find that the Lo. Dyar M. 14. Eliz. said that the King could but onely distraine for his rents and not otherwise levie them of lands or goods and that the King by his Prerogative may distraine in any other lands of his tenant our bookes tell us but no more Yet I know it hath beene otherwise done of late in the Exchequer which if it have beene the ancient and frequent use of the Exchequer it will stand as law though unknowne to the Lo. Dyar Now rent upon a lease for yeares differeth from the other since for the arrerages thereof an action of debt lyeth but how can either of these be debts of record when the not payment may be either in the Court of Exchequer or to the receiver generall or particular how then can there be any certain record of the not payment so as to make any certain debt upon record Wee know statutes have beene made to make the lands of receivers subject to sale for satisfaction to the Crown and besides that some ancient Patents direct the payment of Fee-farmes into the hands of Sheriffes the statute of Westm 1. cap. 19. provides remedy for the King against Sheriffes not answering the debts of the Crown by them received so as the Kings Farmer or debtor may have paid his rent or other debt and the Crowne have not yet received it Of Fines and amercements in the Kings Courts of Record there is no doubt but they are debts of record Come we now to the debts of subjects and first those of record touching which I shall not be able to hold so good a method and so well to handle things by parts as I would for that the parts so stand in competition one with another for precedencie as that they must of necessity thereabout conflict and interplead one with the other and contest one against the other yet for the Readers better ease and ability to finde out that which may concerne him in his particular case I will in the best sort I can single out these things into severall parts and place them in severall roomes or stations First considering how it shall stand between one judgement and another had either against the executor or testator Secondly how betweene judgements and statutes or recognizances Thirdly how betweene recognizances and statutes Fourthly how betweene one recognizance and another Fifthly how betweene one statute and another adding to each some observations incident Now next to the debts of the Crown are judgements or debts recovered against the testator to have priority or precedencie in payment as being of an higher nature or more dignity than any other for that statutes and recognizances though they make debts upon record yet are they begotten but by voluntary consent of parties whereas in every judgement there hath beene a course and work of Justice against the will of the defendant as is presumed and this in a court of justice and the records of such judgements are entred in publike rolls not kept or carried in pockets or boxes as statutes and untill inrolment recognizances are Therefore executors must take heed that judgements against their testators before debts any other way if they have not sufficient for both be first satisfied lest they draw the burthen of this debt upon their owne backs Now their way to help themselves being sued or pursued for other debts is the same before delivered touching debts upon record to the Crowne viz. by plea where they may plead as in Sâ—ire facias upon a recognizance or suit upon band and by Aâ—dita querela where they cannot plead as when execution is sued
from the very time of making the lease as either by a contract real of quid pro quo or rather by an operation of law or legall constitution or ancient custome of the Realme without any contract of persons Lastly for that the lessor doth not distraine the cattell therefore or in that respect for that they are or were the goods of the testator but for that hee found them levant and couchant upon the land which must afford his rent or a distrâ—sse for it if behinde so as if they had beene any under tenants or strangers Cattell they might have beene distrained Some may perhaps object this reason why these impounded cattell should be delivered in execution viz. for that where otherwise the creditor by statute or judgement should lose all or part of his debt yet by this releefe done to him shall not the lessor lose his rent for that he may at any time after distraine any goods or cattell found upon the ground at any time during the continuance of the lease But here besides the point of delay and stay for this rent which to many is the sole meanes of maintaining their households and families this further is considerable that perhaps the lease may be neere expiring perhaps so highly racked and rented even to or above the value as that the executor having his testators stock taken from it and him by execution will not stock it any more and so the land lying fresh if the lessor shall lose the benefit of his former distres he shall be perhaps without remedy for his arrerages of rent And if the case were of a distres for rent behind after the testators death I conceive though not so strongly for most of the reasons abovesaid that the law would be all one as in the other case for though in this case respect shall not be had to the executors losse upon whose goods the law casts this debt though not the other yet here the point of losse must fall either upon the lessor losing his distresse or upon the other creditor by specialiy or record losing wholly or in part his debt And in respect of this locall tye upon this land for paiment of the rent whereto even the fealty of the lessee and tenure of the land bindeth him and it I think no act that the lessee can do by entring into bonds or statutes or having judgements against him can hinder the lessor or reversioner from taking his remedy upon this leased land for the rent therefore due but rather any other creditor shall be a loser in his debt Doubtlesse iâ— in barre to the avowrie for this rent due either before or since the testators death the executor will plead that the testator was indebted a thousand pounds by statute recognizance or judgement which is more then all his goods amounted unto it will be no good plea but may be demurred upon What if hee plead so much debt of record to the Crowne surely I doubt whether this plea will be allowed in any other Court then the Exchequer yet if these arrerages of rent shall be levied upon the land so as either the executor must pay it or lose the cattell distrained by a returne irreplevisable and then shall not have sufficient to satisfie the debt to the Crown I see not how he shall well escape when pursued in the Exchequer to make up this Crowne debt out of his owne purse which is hard For this we may pitch upon as a Maxime and principle that an executor where no default is in him shall not be bound to pay more for his testator then his goods amount unto Againe it is a rule that where nothing is to be had viz. justly to be had the King loseth his right and our bookes tell us that the Kings Prerogative must not do wrong Potestas ejus juris est non injuriae nam potestas injuriae non est Dei sed diaboli On the other side it may be said that if land leased come to the King by grant outlawry or otherwise the rent reserved cannot be distrained for and therefore is it not very unreasonable nor incongruent that the Kings interest for his debt should make the distres of a subject to stand by and give place This therefore among other of the premises do I leave as a quaere nor is it altogether unprofitable either for an executor or creditor to know what wayes and passages what cases and contingents be doubtfull and hazardous And if in these unbeaten paths where our bookes and relations have held me forth no light expresse or particular I have erred in mis-resolving or missing to resolve I hope I shall without difficulty obtaine pardon Now let us consider of assumptions or promises made by the testator upon good consideration the performance whereof or making recompence and satisfaction for not performing doth lye upon an executor as before is shewed These therefore are to come behinde and give place unto all the former so as an executor this way or for these sued may pleade debts by specialty rent c. amounting to the whole goods And yet these debts by contract or assumption expresse are to be satisfied before legacies be to be had First because by the common law of the land those are recoverable and so are not legacies next because as our bookes speake it concernes the soule of the testator to have aes alienum all duties and debts to other men satisfied before the debtors voluntary gifts or bequests Also these debts by assumption or simple contract are to be satisfied before the reasonable part of the wife or children to which by custome in some Counties they are intitled see 21. Ed. 4. 21. 2 Ed. 4. 13. 2. Hen. 6. 16. And note that in such an action upon the case it is not of necessity to lay or set forth in the declaration that the defendant hath assets to pay all debts by specialty and this also but if there want the defendant must alledge that in his excuse for else it shall be presumed that he hath assets So also in an action upon the case grounded upon the executors owne assumption to pay his testators debt and yet as the L. Cooke conceives and upon good reason as to me it seemes if the executors so promising had not assets sufficient in his hands to pay this debt promised he pleading non assumpsit may give that in evidence for then the consideration faileth as also if there were no such debt due since the plaintife could not have recovered if he had sued and so his forbearance to sue was no valuable consideration Chap. XIII Of Devastation or Wasting THat which S. Paul of dispensers spirituall who are as it were the executors of the last will and testament of our Saviour Christ doth say or enjoyne viz. that they must be found faithfull The same is required of these lesse or inferiour dispensers the executors of mens Wils and
and wife and the will proved with both their likeing in the wives name and examine what acts the wife of her selfe is able to do and what her husband without her It hath beene conceived by many of old and by some of late that if a Femme covert or maried woman executrix release a debt of her testator or give away the goods which she hath as executor or deliver a legacie bequeathed it was firme and good and on the other side that her husbands gift or release was of no value for that the administration or execution of the will is committed to the wife only and some have gone so farre as to say that she may sue or be sued without her husband in the Courts of Common Law I meane for in the Spirituall Court it is true the husband is not joyned with the wife in suit but the law is doubtlesse in all those points contrary as not only some opinion also was of old viz. in the time of H. 7. but also hath beene in the late Queenes time resolved for otherwise if the wives gift or release should stand good her act might exceedingly endamage her husband and make his goods lyable to the creditors the testators state being wasted by the gifts or releases of his wife Wherefore it was held in the said late case that unlesse due payment were made to such women covert executors their releases or acquittances be void and so also their gifts and grants yea it was then held that the husband of the wife executrix may give goods or make releases of debts at his pleasure But doubtlesse by mariage neither are the goods though personall which the wife hath as executor devested out of her and setled in her husband as her own goods are nor if she dye shall they acrue to the husband if no alteration were of the property but shall go to her executor or to the next of kin being administrator of her testator if she have no executor and so was it held in the first yeare of Queene Mary Yea though for any other goods which the wife had in her owne right before marying the husband alone without naming the wife may maintaine an action of trespasse yet touching such goods as the wife hath as executor the action must be brought in the names of the husband and wife to the end that the damages thereby recovered may accrue to her as executor in lieu of the goods So also must the replevin for those goods be in both their names But although the husband be thus named with the wife yet principally is it the suit of the wife and therefore in such actions or in debt by husband and wife she being executor if it come to triall by Jury the husband being an alien yet shall he not have triall per medietatem linguae or alienigenarum that is by halfe aliens as in other cases Cases where an alien is party to a suite is to bee had And whereto a wife made executor power is given to sell land of the testators shee may sell to her owne husband as was resolved in the time of King Henry the seventh where the Feoffees it being land setled in use were committed to the Fleet for that they would not execute an estate to the husband according to the wives state But of this I much marvell since the Law intends the wife so under the husbands command and subjection that it holds not her disposition of land to him by will free nor therefore of force and how shall this then be conceived to be but a partiall sale yet volenti non sit injuria and he that will put such power into the hands of a woman under coverture doth in a manner subject it voluntarily to the husbands will And it hath been held by some that even an infants or femme coverts conveyance in such case of necessitie should stand firme and unavoydable because of the condition expresse or implied that the state should bee void if no such conveyance made Touching infants and their making or being made executors BEing now to consider of disability by age for want of yeares in persons making or being made executors Let us first take view of the severall ages of men and women to severall purposes materiall in the lawes judgement and respect And first touching a woman Wangford in Henry the sixth his time shewes and other books approve that she hath sixe severall ages respected in and by the law As first the age of seven yeares for her father to have aid of his tenants to marry her Next nine years to deserve dower that is that in case she be of that age at the time of her husbands death shee shall be endowed but not if she be any thing under those yeares the Law being Physically informed that a woman at those yeares may conceive a child but not under them But of somewhat different opinion was as it seemes the Parliament in the late Queens time when it was made felony to have unlawfull carnall knowledge of any woman child under the age of ten yeares it being then conceived as I thinke that no such could consent The age of twelve yeares is a womans time for assenting or disassenting to marriage in more tender yeares had For so it appeares by divers bookes although Mr. Littleton have here no distinction between male and female The age of fourteen years is a womans time to be in wardship or not so as if she be any thing above those years at the time of her ancestors death she escapeth wardship The age of sixteene yeares is her time of comming out of wardship being once fallen under it for although had she beene full fourteene she had escaped it yet not so being at the time of her ancestors death her wardship lasteth till sixteen yeares except the Lord shall sooner marry her And lastly the full age of a woman whereby she is inabled firmely and unavoidably to make grants or conveyances is one and twenty yeares as well as for the male before which time be it that she being sole make a feofment or other conveyance or being married alien her land by Fine and her husband of fuâ—l age joyne with her yet is it infirme and avoydable Now of the male or man the first age materiall and setledly resolved on is twelve years for at that time each male is at the Leet to sweare his fidelity to the King this women doe not and therefore are they never said to be outlawed but to be waived because they have not this admittance into the Law which males have This hath been as I think the ground of that speech That women are lawlesse creatures The second age of males is fourteen yeares accounted by the Law the age of discretion especially materiall to two purposes viz. First that if one under that age commit an act amounting to felony yet is he to stand free
the second point it may have these two parts 1. When the executor is able to give such assent to a legacy And 2. when he may do it with safety As for the first he is able before probat of the will to assent unto the execution of a legacy as elsewhere is shewed and that although he be not of full age of 21 yeares but if he be under 17 yeares so as he is not able to take upon him the office of an executor and therefore administration is during that time to be committed to some other Here his assent is not of force or effectuall as wee find in Princes case to have been held in the case of Pigot and Gascoine As for the second part till all debts be payd the executor may not safely consent that the legatee enter into the lease or chattell devised no more then he may pay money bequeathed if there be not sufficient also to pay all debts Of these things more is said elsewhere Yet because the reader or he that desires direction in these points will look for them under this title I thought not good here to be altogether silent touching them As for the third point viz. Whether the assent of one executor where there be many be sufficient I see not how to doubt since any one executor may give away any goods of the testators or release any debts due to him therfore much more assent which is no more or greater work in effect then an atturnment of one lessee upon a grant of a reversion And if there want to pay debts he only who assented shall answer for it of his owne goods and not his companions But if this executor be either under the age of 17 yeares or under coverture viz. a woman maried such is not able to give a good assent to binde the others no nor themselves for then thereby the Infant might draw a debt upon himselfe and the wife upon her husband by assenting to or paying of a legacy there not being sufficient goods to pay all debts But the husbands assent is sufficient where the wife is executor for his acts whom she hath chosen to be her head may prejudice as well her as himselfe yea though she were within age yet he being of full age his assent will stand good But if he or another executor in his own right be above 17 yeares of age and under 21 I doubt whether now his assent will be sufficient at least except the case be put that there be assets sufficient which perhaps there may be materiall though not in the other See more hereof after in the title of women covert and Infants executors As to the fourth point first there may be an assent election implyed as well as expresse for if in the devise or bequest the legatee be appointed to do some act as in respect of the legacy and the excecutor doth accept the performance thereof this amounteth to an assent So if the devise be to an executor for the education of some children which he doth accordingly educate this makes an election to have the thing by way of legacy and not as executor as appeares by the case of Paramoor and Yardly Plowd 543. So if an horse be bequeathed and one offering to buy him of the executor himselfe he directeth him to go and buy the horse of the legatee or if the executor himselfe offer money to the legatee for the horse this implyeth an assent that it should be the legatees by the will and so was it held in the case between Low and Carter where the devisee of a terme did grant it to the executor and this acceptance of a grant from him was held to imply the executors assent that it should be his to grant But I see not well how that should be law which in the latter part of the Lo. Dyer is found viz. where a terme was devised to I. S. and he was made executor and after the death of the testator entred and occupied the lands a whole yeare without proving the Will that this was an election to have it as devisee and not as executor For first he had good right to the terme as executor before probat and so might clearly in that right have taken the profits although it had not bin devised or bequeathed to him and that before any will proved Secondly he could not by right have it as legatee without assent of himself or some other as executor Therefore this general accepation can determine no election as elsewhere is held As for disassent or disablement to assent As if the executor do once declare his assent that the legatee shall have his legacy he may then enter into it or take it notwithstanding the executors countermand or revocation of his assent after So on the other side I think if he do fully and expresly deny that the legacy shall take effect he cannot after make a good assent thereunto for that election once made must stand peremptory be it refusall to assent or assent Yet quae of this for that the refusall to assent may be checked by sentence or decree in the Spiritual Court or Court of Equity and so an assent be inforced But if the power of assenting be legally lost by the meanes aforesaid viz. disabled I see not how any legall interest can be transferred by that compelled assent howsoever decreed And what is said of a legacy bequeathed to another the same may be understood in case where the bequest is to the executor himselfe and he makes his election to have it as legatee or as executor But if where an Horse is bequeathed to A the executor after the testators death doth ride the horse or use him in the Coach or in the Plough I do not take this to be any such disagreement to the execution of the legacy as that the executor cannot after assent to the legatees having thereof no more though it be somewhat more then where a drinking-cup is bequeathed and the executor after the testators death doth use it to drinke in nay if a lease of land be bequeathed to A and the executor continueth the depasturing of the testators therein yet is not this any disagreement to the execution of the legacie but if this lease-lease-land were let out by the testator from yeare to yeare and the executor dischargeth the tenant and taketh it into his hands at the yeares end this I conceive to be a dis-assent to the legacie and so also perhaps may his taking or distraining for any rent thereupon due after the testators death yet am I not resolute that the dis-assent is so peremptory and unchangeable as the assent remembring the case in King Henry the eight his time where a terme being granted by a lessee conditionally so as the assent of the lessor could be had by such a day though the lessors assent were at one time denied yet
effect And it hath beene resolved that this assent shall bee effectuall as well to all the remainders as to the first estate and so according to former resolutions it was admitted in Hamons Case that Alexander his assent to take as legatee sufficed if the bequest had beene good for the remainders to Ralfe and others And the reason of this doubtles is because heere the particular estate and the remainder are all but one estate in Law they make but one degree in a Writ of Entre nor shall have but one yeere and a day to enter for mortmaine And an atturnement to the grantee of a rent or reversion for life with remainder over doth enure also to the remainder which being an assent hath much affinity to that of the Executor each tending to perfect the grant of another man Now then whereas it was urged in Hammoâ—ds Case that the state limitted to Ralâ—e should take effect not as a remainder but as a new estate to commence futurely viz. when Alexander should bee dead without issue male if it should bee admitted to bee so then could not the assent of the first state to Alexander have enured to this since to A. remainder it worketh as being one estate with the first which reason must faile thother way This difference betweene a remainder and new estate future brings to my minde the case of a rent by way of new Creation granted by C. out of land to A. for life or in taile with remainder to B. in like manner where it hath probably beene held although this limitation to B. cannot bee good by way of remainder because C. had no estate in the rent remaining with him when hee made the grant to A. yet should it be good by way of new grant and creation to commence futurely But this doubtles cannot so be but with a difference for if the grant were by indenture betweene C. on th one part and A. only on the other part now B. being no party to the deed can take nothing by it except by way of remainder but if hee were party to the indenture or if the grant were by deed poll to which all men are alike parties then it happily may enure as a future grant to B. This not impertinent Now as the executors assent to one cannot enure to another though of the same thing except by way of remainder so neither can it any way where the things are not the same except in very speciall cases as if a termor bequeath a rent to A and the land it selfe to B the executors assent that A should have the rent is no assent that B should have the land yet I think the assent that B should have the land doth imply the assent that A should have the rent 1. For that the restraint imposed by the law against the passing of a chattell by a will without the executors assent being out of respect to the payment of the testators debts now if the land shall passe to B it is no more availeable to the testators debts that it passe discharged of the rent then charged 2. Since the gift and bequest was of the land charged with the rent therefore if this bequest shall take effect it shall carry the land according to the testators intent viz. with this charge upon it for what else doth the executor in this but assent that the will of the testator herein do stand and take effect and consequently B must take the terme according to the will and not in any different or contrary manner Next we are to consider of the manner of assents by executors which hath some affinity with the fourth point But here we shall consider only of assents conditionall now to this purpose we will cast our eyes upon two sorts of conditions viz. precedent and subsequent As for â—he former an executor may to a legatee absolutely given assent upon a condition precedent as thus I am content that if you can get and bring in to me such a bond wherein the testator stood bound unto I. S. that then you enter upon the terme or take the corne or cattell to you bequeathed So of other like conditions which may precede the assent as if you can get the assent of my coexecutor or if you will pay the arrerages of rent to the lessor behind at the testators death or if you will pay the wages already due to the servants attending about the cattell or corne to you bequeathed In this case if the condition be not performed there is no assent and therefore the conditioning in this manner is good But if it be upon a condition subsequent as thus I do agree that you shall have the thing bequeathed to you provided that you shall pay so much yearly to me or to such a creditor of the testator now the legatee entring into or taking the thing bequeathed shall not lose it againe by failing to performe the condition afterwards for the executor by his assent cannot make that legacy conditionall which the testator gave absolutely no more then he can make that bequest to be absolute which the testator gave conditionally except by a release made of the condition As in other things so in this the executors assent is like to the atturnement of a lessee which cannot be upon a condition subsequent where the grant is absolute or without condition though yet he may to his atturnement prefix a condition precedent In the eighth place we are touching the bequest of leases or chattels reall to consider what manner of interest one to whom a remainder of a terme after the death of another is limited hath and whether he may grant the same or dispose thereof during the life of the first And as to that it is cleare that he hath but a possibility of remainder for that possibly the whole terme may be spent in the life of the first to whom during his or her life it is bequeathed now a meere possibility is not grantable Therefore was it resolved in the late Queenes time where hee in remainder granted or sould his state or interest to another during the time of the first that this grant was utterly void because a possibility cannot be granted but whereas some opinion in that case was delivered that this possibility could not be released no more then granted it hath since bin resolved that he in the remainder by his deed of grant or release to the devisee for life may make his estate which before was determinable by his death to be now absolute so as it shall continue to his executors administrators and assignes after his death during the whole terme It may be that what was conceived in the said case of Fulsey negatively of the validity of a release by him in the remainder might be meant or perhaps expressed of a release to him in the reversion but surely me thinks though he could not surrender yet his release or defeasance to him
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