the Administration if the Executor refuse or if there be a Will made and no Executor appointed the Ordinary must commit Administration cum Testamento annexo to whom he shall think fit and take Bond of the Administrator to perform the Will If no Will be made he must grant Administration to the next of Kin if they refuse it then to whom shall desire it and if no body take the Administration the Ordinary may grant Letters ad colligendum bona Defuncti and thereby take the deceased's Goods into his own hands wherewith he is to pay the Debts and Legacies so far as the Goods will reach for which himself becomes liable in Law like other Executors or Administrators 4. A Testament after the Testators death and not before may be Proved either in Common Form as when the Executor presenting the Testament before the Judge without citing the interessed doth depose the same to be the true whole and Last Will and Testament of the deceased and whereupon the Judge doth annex his Probate and Seal thereunto Or in form of Law as when the Widow or next of Kin to the deceased are cited to be present in whose presence the Will is exhibited before the Judge whereupon Witnesses being produced received sworn examined and their depositions published the Judge in case of sufficient proof doth pronounce for the validity of the Testament Now he that Proves but in Common Form may be compelled to Prove the same again in form of Law but being once so Proved the Executor is not compellable to Prove it any more but being Proved only in Common Form it may be questioned at any time within thirty years next after by common Opinion before it work prescription which is otherwise in case it be Proved in Form of Law or per Testes There is another kind or Form of Proving Testaments which in the Civil Law is called Apertura Testamenti but this savours too much of Ceremony to be of any use with us Let it therefore suffice to be farther Noted that be the Testament Proved in what manner soever yet the Executor before the Office-Seal be affixed thereto is to be obliged by his Oath yea and by Bond if need so require to render a just account of the Execution of the Testament when be shall be thereunto lawfully called Lastly the Probate of every Bishops Testament or the granting Administration of his Goods although he had not Goods but within his own Jurisdiction does belong to the Arch-Bishop of the same Province 5. Touching the Fees for Probate of Testaments for Registring Sealing Writing Preising making of Inventories giving Acquittances Fines and all other things concerning the same as also for granting Administrations the Reader is here referred to the Statute of 21 H. 8. cap. 5. Enacted in that behalf where the penalty is Ten Pounds for taking more than is there appointed If the Executor request any to engross the Testament he must agree with him that he doth so request or bring one ready ingrossed with him which for prevention of paying more Fees than is due by the Statute is advised as a safe and ready way Note that by the said Statute neither the money raised of Lands appointed by Will to be sold nor the profits thereof are to be accounted as any of the Testators Goods or Chattels The Will is to be brought with Wax thereunto ready to be Sealed and proof to be made thereof And the Executor at the making of the Inventory is to call or take to him two of the Testators Creditors or Legatees or in their absence or refusal two honest persons of the Testators next of Kin or for default of them two other indifferent persons which Inventory being indented is to be attested for the truth thereof by the Executors Oath and one part thereof to be left with the Ordinary the other part thereof to remain with the Executor 6. If on Process or Summons from the Judge the Executors appear not to Prove the Will they are punishable for contempt if they appear but refuse to Prove the Will the Judge may grant Administration to the Widow or next of Kin. Now Refusal cannot be by word only but it must be Entered and Recorded in Court and therefore it must be done before a Competent Judge and not before Neighbours in the Countrey But where an Executor hath once Administred there he cannot afterwards refuse to Prove the Will and take on him the Executorship because by once Administring he hath accepted the Executorship by interpretation of Law and so determined his Election and in that Case the Ordinary ought not to accept of such refusal but to compel him to Prove the Will and take upon him the Executorship Yet in case the Judge doth admit one to refuse notwithstanding his former having Administred it shall stand good But after refusal and Administration committed to another the Executor may not recede from it and go back to Prove the Will and to assume the Executorship indeed if only upon the Executors making default of appearance upon Process or Summons to Prove the Will Administration be instanter committed to another in this case the Executor may yet at any time after come in and Prove the Will and so undo the Administration But if after refusal it appear to the Judge that the Executor had Administred before such refusal he may revoke the Administration and enforce the Executor to proceed to the Proving of the Will As if A. being Executor shall Administer and yet refuse to Prove the Will so that Administration is committed to B if B. being afterwards sued for Debt shall plead the matter supra it shall be found a good Plea Also an Executor may be sued for the Debts of the Testator in some Cases even before the Will is Proved for he may not by his own act of delaying to accept or refuse the Probate of the Will keep off Suits except he will refuse in due manner that so Administration being granted there may be some one suable by the Testators Creditors for the Debts owing by him CHAP. XXI Of Proof requisite to a Will 1. What Testimony sufficient to Prove a Will 2. Proof requisite to a Will written by the Testators own hand 3. What Witnesses are incompetent to Prove a Will 4. Legataries how far they may be competent Witnesses 5. Animus Testandi how it may be proved 1. WHere there is no controversie or dispute touching the Will there the single Oath of the Executor alone is sufficient for the Probate thereof in Common Form and where other proof is requisite there it lies much in the breast of the Judge duly regulated by Law what proof to admit for the number of Witnesses for the quality of them and for the nature of the Proof according to the circumstances and strength of opposition made against the Will But regularly by the Laws and Customes of
Notabilia whereby the Arch-Bishop shall grant the Administration although the Lease for years be not a thing moveable nor properly Bonum but it is a Chattel according to Pleadings If a man becomes bound in an Obligation at London and dies Intestate in Devon and there hath the Obligation at the time of his death with him Administration ought to be granted by the Bishop of Exon where the Obligation was at the time of his death and not by the Bishop of London where the Obligation was made for the Debt shall be accounted Goods as to the granting of Letters of Administration where the Bond was at his death and not where it was made To make Bona Notabilia a Debt without specialty shall be accounted Goods where the Debtor lives and not where the Testator lived Likewise if a man dies Intestate having divers Debts or Obligations in several Diocesses the Debts are said to be Bona Notabilia where the Bonds or Obligations are and not where the Debtors or Debtees are If a man hath Goods to the value of Five Pound in one Diocess and a Bond or Obligation to a greater value in another Diocess the Obligation being there also made they are Bona Notabilia for which reason the Arch-Bishop shall grant Administration Anciently if a man died Intestate having Goods to the value of Forty Shillings in two Diocesses it should make the Goods to be Bona Notabilia whereby Administration should be granted by the Arch-Bishop But by a Canon 1 Jac. cap. 93. It is Ordained that Bona Notabilia shall be accounted to be Five Pound at least and that none shall be said to have Bona Notabilia unless he hath Goods in divers Diocesses to the value of Five Pound and so that Canon hath changed the Law if it were otherwise before Likewise in the said Canon there is an Exception of such Diocesses where by Custome or Composition Bona Notabilia are rated at a greater summ than Five Pound The Chapters of the Second PART I. Of the Appointing or Constituting Executors II. Of Conditional Executors III. Of appointing Co-executors IV. Of substitutions and appointing Executors by degrees V. Of the several wayes of Constituting Executors VI. Of persons incapable of being Executors or Administrators VII Of an Executors Executor VIII Of an Executor in his own wrong IX Of a Child in the Womb made Executor and of an Infant Executor as also of Executors and Administrators durante Minoritate X. Of a woman under Coverture made Executrix or making Executors XI Of Debtors and Creditors made Executors XII Of the general difference between an Executor and an Administrator and wherein they generally agree XIII Of the Executors Rights exclusively to the Heirs XIV Of the Heirs Rights exclusively to the Executors XV. What goes neither to the Heir nor Executor and in what Cases XVI Of the Indivisibility of the right and interest of Co-Executors XVII Of the Executors Interest and Possession and how it differs from that which he hath in his own proper Goods XVIII Of the Executors Right in opposition to the Heirs in reference to Mortgages XIX Touching the Executors Election to accept or refuse the Executorship XX. Touching what Acts may or may not be done by an Executor before Probate of the Will XXI Of Inventories XXII Of Actions mantainable by Executors or Administrators XXIII Of Actions maintainable against Executors or Administrators XXIV Of Assets charging Executors or not XXV Additionals to the three last Chapters touching how far and wherein Executors may be charged XXVI Of a Devastavit or Wast in an Executor or Administrator XXVII Of the Executors power in Sale of Lands devised to be sold XXVIII Of Debts Legacies and Mortuaries and the Executors method in payment thereof XXIX Of Executors Accounts XXX Of Administrators in a notion distinct from Executors XXXI Of Administrations fraudulent and revocable XXXII Of Filial Portions XXXIII Of Right to Administration XXXIV Of Succession in the Right Line Descendent XXXV Of Succession in the Right Line Ascendent XXXVI Of Succession in the Line Transversal or Collateral THE SECOND PART OF Executors and Administrators CHAP. I. Of the Appointing or Constituting Executors 1. The Testators freedome or Liberty in making Executors 2. How the Office of Executorship may be perform'd or discharg'd when a King is made Executor 1. THe word Executor taken in the largest sence falls under a three-fold acceptation for so there is Executor à Lege constitutus and that is the ordinary of the Diocess and there is Executor à Testatore constitutus and that is the Executor Testamentarius and there is Executor ab Episcopo constitutus and that is the Executor Dativus who is called an Administrator to an Intestate By the Civil Law this Executor Testamentarius or Haeres in the Dialect of that Law doth succeed in Vniversum jus defuncti Now the Law holds forth that Liberty to Testators that they may if they please exclude their own Wives and Children and appoint strangers in their Testaments to be their Executors for the validity of the Testators Will chiefly consists in the freedome and liberty of the Will of the Testator Therefore the Testator may if he please appoint even Bondmen Villains or Prisoners as his Executors or Infants yea whether born or not born at the time of the Testators death or Women whether under Covert and Married or Sole Also Testators may if they please make such persons their Executors as are either their Debtors or their Creditors or one single person or many joyntly as Co-Executors in several persons or many joyntly representing one Body as a Colledge City or other Corporation So likewise they may make their Executors simply and absolutely or conditionally also from a certain time or to a certain time also either universally or specially and particularly likewise in the first second third c. degree by the substitution of one Executor in the place of another And here note that after how many wayes an Executor may be appointed after so many and the same wayes may a Legacy be given and whosoever is capable of an Executorship is also capable of a Legacy Et è Contra. 2. When the King is made Executor he doth appoint certain persons to Officiate the Execution of the Will against whom such as have cause of Action may bring their Suits and appointeth others to take the account So Katherine Queen Dowager of England Mother of Henry the sixth who died 2 June 1436. made her Will and thereof Henry the sixth her sole Executor whereupon the King appointed Robert Rolleston Keeper of the Wardrobe and others to Execute the said Will by the oversight of the Cardinal the Duke of Glocester and the Bishop of Lincoln or any Two of them unto whom they were to account CHAP. II. Of Conditional Executors 1. Executors may be appointed simply or conditionally 2. Executors may be limited in point
be Administrator and have Administration of Leases as well as of personal things because he hath them as an Executor in anothers right and not to his own use Yea it is also said that a Bastard an Excommunicate or an Out-lawed person may be as able and as absolute an Executor as any other Also Infants may be made Executors but the performance of that Office shall not be committed to them untill they have attained unto the Age of seventeen years To the first forementioned may be added Corporations which although lawful ones yet may not stand Executors unless they can duely Prove the Will and take an Executors Oath Finally note that what hath been here formerly said of Executors may be also applyed to and understood of Administrators CHAP. VII Of an Executors Executor 1. That the Executor of a sole Executor is Executor to the first Testator 2. That an Executors Executor cannot perform a Trust committed by the first Testator 3. An Executors Executor hath nothing to do with the first Testators Goods where there is a surviving joynt-Executor 4. In what Case an Executors Executor shall have to do with the first Testators Goods when the surviving joynt-Executor shall not meddle therewith 1. AN Executors Executor where there is no joynt-Executor is Executor to the first Testator as he is to the second and consequently hath a right to all the profit and is liable to all the charge that the first Executor had or was subject unto yet with this caution and difference that the one Testators Goods shall not stand charged for the other Testators debts but each for his own respectively And if in such case the Executors Executor assume the Administration of the first Testators Goods he cannot afterwards refuse the Administration of the Goods of the later Testator but he may accept the later yet refuse the former but not è contra Also an Executors Executor shall not be admitted to Administer the Goods of the first Testator where the first Executor who was his Testator refused to Administer or died before Probate unless all the residue of the first Testators Goods after the debts paid be given in the Will to the first Executor 2. Where a special trust is by Will recommended to an Executor as to sell Lands c. This being not performed in his life-time shall not be performable by his Executor after his death Contrariwise it is of an interest as to take the profits of Lands for certain years towards payment of Debts and Legacies or for recovery of Rents of Inheritance left unpaid in the Testators life-time 3. If Two Executors be appointed whereof one maketh his Testament wherein he nameth his Executor and dieth his joynt-Executor surviving in this Case the Executor of the Executor is not to be joyned with the said joynt-Executor surviving neither in the Execution of the Will nor in Suits or Actions And if such Executor of the Executor have any Goods which did belong to the first Testator the surviving Executor of the same first Testator may have an Action against such Executors Executor for the same Insomuch that if the surviving Executor doth afterward die intestate yet may not the Executors Executor meddle with the Goods of the former Testator for the power of the Executor who died first was determined by his death the other then surviving And the Judge in this Case may commit the Administration both of the surviving Executor who died afterwards intestate and of the Goods of the former Testator not before Administred And if the Executor of the Executor who died first meddle with the Goods of the first Testator he may be sued by the Creditors of the first Testator as Executor in his own wrong But where there is no joynt-Executor there most things which concern immediate Executors extend also to the mediate or more remote Executors that the mediate Executor in the fourth fifth or further degree stands in like manner Executor to the first Testator as the first and immediate Executor and may sue or be sued as the former 4. Suppose Two Executors whereof One refuses to Prove the Will and Administer the other Proves it Administers and dies Testate In this Case the Executor of that joynt-Executor that so Proved the Will shall be the first Testators Executor and the surviving Executor so formerly refusing shall not now be admitted to intermeddle therewith because his Election determined at his Co-Executors death But it is otherwise where the surviving Executor hath accepted the Executorship for in that Case he shall have the sole disposing of the Estate and the Co-Executors Executor is not to intermeddle therewith but to surrender to the other what Goods belonging to the first Testator happen to be in his Custody Errour the Errour assign'd was That W. E. had brought debt upon an Obligation by the name of W. E. Administr Bonorum Catallorum A. E. durante minori aetate of J. E. Executor of the said A. E. Executor of R. E. and demands a Debt upon an Obligation of Twenty nine pound made to the said R. E. the first Testator whereas he could not bring an Action by this Name but as Administrator of R. E. But it was said that Administration of the Goods of R. E. being committed to him by this name omnium Bonorum c. A. E. it may well be committed to him by this Name especially when A. E. did not die Intestate but made an Executor 10 Ed. 4. 1. That by the grant of the Administration of the Goods of the Executor Administration is by it granted of all the Goods of the first Testator 27 H. 8. 7. Curia Contra clearly For by this Administration committed he hath no Authority to meddle with the Goods of the first Testator and for this cause the Judgement was reversed Debt against the Executor of an Executor The Defendant pleaded that the Executors Testator had fully Administred and that he had nothing in his hands at the time of his death and it was found that he had Assets Whereupon a Fieri facias issued to the Sheriff and he returned that the Defendant had nothing And it was held that the Sheriff should be amerced for he should have stopt making such Return And that it should be no prejudice to the Plaintiff for that the Debt shall be charged so long as the Record remains in force not Reversed by Errour nor Attaint And if he hath no Goods of the Testators he shall be charged of his own proper Goods For that when he pleaded that the first Testator had fully Administred he did not say that Assets did not come to his hands after his Testators death CHAP. VIII Of an Executor in his own wrong 1. Who is an Executor in his own wrong and what Acts make him such 2. How far an Executor in his own wrong is chargeable and how impleadable 3. What Acts shall not make a
if A. dies his Executors not his Heirs shall have it for it is no Inheritance Or if such a Termer grant a Rent out of the Land to A. and his Heirs or the Heirs Male of his body yet shall it go to the Executor not to the Heir for it being derived out of a Chattel it self remains a meer Chattel and becomes not any Inheritance Also if a Rent be granted out of Land to one in Fee-Simple Fee-Taile for Life or Years and it be not paid to him in his life-time the Arrerages shall go to his Executor not to his Heir Or if a man seized of Land and possessed of a stock of Cattel Let it for Years and Covenant with the Lessee that he pay to Him and his Wife their Heirs and Assigns one hundred pound per annum during the Term in this Case after the death of the Lessor his Wife surviving him her Executor and not his Heir shall receive this payment Again if A. grant the next Presentation of the Church of B. unto D. In this Case if D. dies his Executor shall have it as a Chattel Not the Heir Or if A. grant a Lease for years of Land to D. and his Heirs and dies his Executor and not his Heir shall have this Term. And if A. possessed of a Term of years of Land grant it by Deed or give it by Will to D. and his Heirs or to D. and his Heirs Males or devise it by Will to B. for life the remainder to D. and his Heirs in these Cases D. shall have these Terms of years as Chattels and after his death his Executor shall have them Also if a Lessee for life make a Lease for years absolutely This in Law is a Lease for so many years if the life live so long and shall go to the Executor after his death And if one makes a Feoffment in Fee of Land the Feoffee covenanting to do divers things to the Feoffor and to forfeit five pound to him and his Heirs as oft as he shall fail performance and the Feoffee doth fail and break his Covenant divers wayes and the Feoffor dieth in this case his Executor not his Heir shall have and recover all the Forfeitures that are past and unpaid Also if any Goods or Chattels be granted to any Heads of Bodies Politick and their Successors their Executors and not their Successors shall have them In like manner if a Lease for years be made to a Bishop and his Successors and he die his Executor not his Successor is to have it 4. Among the living Chattels Personal that go to the Executor may be comprehended an Apprentice for years the interest of a Debtor in Execution for debt and in a Prisoner taken Jure belli Also Cattel of all kind yea and Fishes in a Pond Conies in a Warren Deer in a Park Pigeons in a Dove-house where the Testator was but a Termer or Lessee thereof for then they are to go to his Executor as Accessory Chattel following the State of their Principal viz. the Pond Warren Park and Dove-house Or if the Conies Pigeons or Deer were all tame they are then likewise to go to the Executor and not to the Heir so likewise are Hawkes reclaimed yea it is felony to steal Hawkes young in the Nest which implyes that they are Goods and belong to the Executor 5. Chattels Personal without life and moveable as all Householdstuff Implements and Utensils Money Plate Jewels Corn Pulse Hay Wood felled Wares Merchandise Ships Carts Plows Coaches c. are evident to belong to the Executor not to the Heir And generally all things sowed and not arising from the Earth without manuring go to the Executorsâ— and such things as grow of themselves to the Heir therefore Corn in the field growing or standing shall go to the Executor Also Hops though not sowen if planted likewise Hemp and Saffron do like Corn growing pertain to the Executor Also after Corn reaped and before the Tythes set out the Inheritor of the Tythes dying his Executor and not his Heir seems to have the best right to the Tythe after set out Also things above ground in Gardens as Mellons of all kind and the like go to the Executor not to the Heir as also all other things as have such a yearly setting or manurance as severs them in interest from the soile Also the Writings and Evidences that concern not the inheritance but only Leases Terms Goods Chattels or Debts pertain to the Executor If one that holdeth Land for the Life of A. B. sow the Land and A. B. happen to die ere it be ripe and cut and he that so holdeth the Land happen to die also before it be ripe the Executor of the Tenant shall have the Corn. And if the Tenant in Tayl sow the Land he doth so hold and die ere it be cut the Executor not he in Reversion nor the Heir nor the Issue in Tayl shall have it Also if A. make a Feoffment of Land to B. excepting the Trees thereon which he afterwards grants to B. for years in this Case the Trees are in the nature of a Chattel and if B. dies his Executor shall enjoy them Or if A. seized in Fee of Lands whereon Trees grow sell these Trees to B. who then dies before they be felled in this Case the Executor or Administrator of B. shall have them and may sell or cut them down Lastly The Executor without contradiction of the Heir may in any convenient time after the Testators death enter into the house descended to the Heir for the removing and taking away of the Goods so as the door be open or at least the key be in the door but he cannot justifie the breaking open of the door of any Chamber to take Goods thence But if the Goods be not removed in convenient time the Heir may distrain them as Dammage Fesante 6. If a Lease for years be made to a Bishop and his Successors and he die his Executor not his Successor is to have it If a Presentment to a Church happen to a Tenant in Tayle and he die before he Presents his Executor not his Issue in Tayle shall Present because the Chattel is not devested Likewise if a Termer have a Presentment which doth happen during the Term though he do not Present yet he shall have it If a Parson Vicar Master of a Hospital or any Body Politick be possessed of any Goods or Chattels in their own Right and die they shall go to their Executors or Administrators not to their Successors If a Lease be made for years or the next Advowson of a Church or Covenant for payment of money or the like be granted or an Obligation made to one and to his Heirs In all these Cases he hath this as a Chattel and it shall go to his
Executor and not to his Heir So if any such thing be granted to one and his Successors his Executors shall have it And if the Heir or Successor get the Deed the Executor may Recover it from them If one hath a Box or Chest or Trunk full of Writings at his death and the same is open not sealed or locked this shall go as Goods to his Executor but if it were sealed or locked as incident to the writings it would be the Heirs whose the Writings be If a man hath a Term and Deviseth the same to one and the Heirs of his body his Heir shall not have it but it shall go to his Executors because a Term which is but a Chattel cannot be Entayled vid. 28 Eliz. Peacocks Case and 21 Eliz. Higgins and Mills Case Adjudged acc In like manner if a Devise be made of Land to one and the Heirs of his body for Five hundred years it is a Release for years and his Executors shall have it For an Executor shall have all Leases for years and although the Heir and not the Executor shall have the writings which concern the Inheritance yet the Executor and not the Heir shall have the Chest wherein such writings are if the Chest were not lock'd but if lock'd then the Heir shall also have the Chest as aforesaid CHAP. XIV Of the Heirs Rights exclusively to the Executors 1. Of things Personal that go to the Heir not to the Executor 2. Of things Real that belong to the Heir not to the Executor 3. A Law Case touching the same 1. TO the Heir not to the Executor do belong Fishes in a Pond Conies in a Warren Deer in a Park and Pidgeons in a Dove-house where the Testator had the Inheritance in the Pond Warren Park or Dove-house for such are not Chattels at all in that case nor to go to the Executor but to the Heir together with the inheritance Also Grass growing for Hay and Trees growing or standing except as in the last precedent Chapter and the Fruit thereon go to the Heir not the Executor Also Glass whether by nails or otherwise affixed to the windows either by the Lord or the Lessee descends not to the Executor but to the Heir as being made parcel of the Freehold or Inheritance of the house But if there be Glass from the windows or Wainscot loose or doors more than are used that are not hanging they shall then go to the Executor As to the Heirs Rights the Law is the same as to Wainscot if affixed or fastned to the house yet by the Civil Law such things as are in the house more for Ornament than Structure pertain not to the house Nor is it material whether the Wainscot be fastned by great or little nayles by skrews or irons thrust through or by other wayes or means for it sufficeth to make it parcel of the Freehold and consequently to go to the Heir not to the Executor if it be any way affixed or fastned to any part of the house The Law is also the same concerning all things fastned to the Freehold or to the ground by morter or stone as Tables Dormant Leads Mangers Milstones Anvils Doors Keys Glass-windows and the like for none of these be Chattels but parcels of the Freehold and therefore belong to the Heir not to the Executor Also Writings and Evidences that concern the Inheritance do pertain to the Heir also the Boxes and Chests wherein the Writings and Evidences of Inheritance are kept and usually have ever been imploy'd only for that Service shall go to the Heir not to the Executor whether sealed or not sealed lock'd or not lock'd Also in some Cases Corn in the ground shall go to the Heir not to the Executor for if a Lessee for years Certain sow the Land a little before the end of his Term and the Term end before it be cut in this Case he that is to have the Land not the Executor of the Lessee for years shall have the Corn. And if one be seized of Land in Fee and thereof make a Lease for years paying Rent at Michaelmas or within ten dayes next after and the Lessor happen to die within the term after Michaelmas and before the ten dayes expired in this Case the Heir of the Lessor and not his Executor shall have the last half years Rent due at Michaelmas Lastly Things under ground whether in Gardens or elsewhere as Carrets Parships Turneps Skerrets and other such like things under ground shall go to the Heir not to the Executor 2. Where a Rent is reserved upon a Lease for years there it shall not go to the Executor but to the Heir with the Reversion other than the Arrerages of such Rent as were behind at the time of the Testators death for such belong to the Executor not to the Heir If A. mortgage the Inheritance of Land to B. upon Condition of Redemption by payment of one hundred pound to B. his Heir or Executor and B. dies the Deeds being delivered into his hands In this Case the Heir not the Executor shall have the Deeds for though the money may be paid to the Executor yet in the mean time the Land descends to the Heir nor is there any debt to the Executor because it is in the Election of A. whether he will pay or not But if on the other side the Land had been sold for one hundred pound not paid to A. but a Condition that if not paid to him his Heir or Executor by such a day then to Re-enter and A. dieth In this Case there is a debt to his Executor and no Land descended to the Heir of A. yet shall the Heir have the Deeds because there is a Condition descended to him But if a Feoffee in Mortgage before the day of payment which should be made to him make his Executors and die and his Heir entereth into the Land as he ought In this Case the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee Unless the Condition were that the Feoffor pay to the Feoffee or to his Heirs such a summ of money at such a day then it ought to be paid to the Heir Also where the Testator recovereth Land and Dammages or a Deed and Dammages and dies before Execution the Heir shall have Execution for the Land or Deed and the Executor for the Dammages but until the Heir sue a Scire Facias the Executor cannot sue Execution for the Dammages for Execution must be first of the Deed then of the Dammages Also if Executors keep in their own hands for the space of one two or three years Lands devised by Will to be sold for any purpose converting in the mean time the profits thereof to their own proper use the Heir of the Testator may enter to the Lands and put
out the Executor unless the money for the Land to be sold be to be distributed in pios usus because in this Case the Frank-tenement after the Testators death is in the Executors not in the Heir for which reason the Heir cannot enter in this Case as he might in the former 3. In an Action of Debt brought against Executors They were at Issue if Assets were in their hands or not and the Jury found by a Special Verdict That the Testator was seized of a House in Fee and made a Lease thereof and of certain Implements of household in it for years rendring Rent to Him his Heirs and Assigns and found that the Executors after the death of the Testator continually received the Rent and prayed Advice of the Court if the same were Assets in the Executors hands And the Opinion of the Court was That it was not Assets for that the whole Rent was to go with the Land in Reversion as magis digne and so did belong to the Heir not the Executors A man Willeth that after twenty years after the death of the Devisor J. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor CHAP. XV. What goes neither to the Heir nor Executor and in what Cases 1. Bona Paraphernalia go neither to the Heir nor to the Exeeutor 2. Things in joynt-Tenancy go neither to the Heir nor to the Executor 3. Things willed by the Testator to be sold for certain uses go to neither of them 4. A Lease simply for Three Lives goes neither to the Heir nor Executor 1. BY the Civil Law those Goods belonging to the Wife called Bona Paraphernalia descend neither to the Heir nor to the Executor neither are they by that Law subject unto the payment of the Husbands debts But now under that notion of Bona Paraphernalia we are not to understand the Wifes Apparel with her Bed Jewels and Ornaments for her person to be comprehended but her convenient Apparel and onely such as is agreeable to her degree and such shall go to the Wife onely the rest unto the Executor And thus much the very word being Etymologized doth imply 2. The Goods and Chattels which one hath in Joynt-Tenancy with another shall not on his death go to his Executor nor to his Heir but to the other surviving Joynt-Tenant and that by right of survivorship Otherwise it is with Tenants in common for if A. and B. have Goods or Chattels in Joynt-Tenancy and if either of them grant what belongs to him unto a Third person in this Case that Third person and he which kept his part unsold are Tenants in Common and therefore if either of them Two die the deceaseds part of such Goods and Chattels shall go to his Executor and not to the surviving Tenant in Common Also if Husband and Wife be Joynt-Tenants of Land and the Husband die the very Corn growing thereon shall survive to her together with the Land and though the Husband sowed it yet shall it not go to his Executor 3. The Monies or Profits arising out of Lands Willed by the Testator to be sold are not accounted as any of the Goods or Chattels of the person deceased and consequently do go neither to the Heir nor to the Executor but to the uses for which it was willed to be sold 4. If one have a Lease simply for Three Lives to him and his Assigns this is no Chattel therefore shall not go to the Executor and it is no Land therefore it shall not go to the Heir but in this Case it shall go to him who first after the Testators death Enters and Claims it as an Occupant if no assignment thereof be made in the life-time of the Lâ—ssee But a Lease for years determinable upon Lives is a Chattel and shall go to the Executor So also doth an Extent upon a Statute CHAP. XVI Of the Indivisibility of the right and interest of Co-Executors Their Indivisibility 1. In point of Power and Authority 2. In point of Interest and Possession 3. In Case of Plaintiffs and Defendants 1. WHere there are more Executors than One or Joynt-Executors to the same Testator One of them cannot give nor release his Interest to the other or if he doth it is void and he who so releaseth shall still have as much Interest as he to whom he released because each had the whole before Therefore if one Executor release but his part of a debt it hath been held that the whole is discharged But if one Executor alone sell Goods of the Testator he alone may maintain an Action of debt for the money So if Goods be taken out of the possession of one Executor he alone may maintain an Action for the same and that without naming himself Executor Also one Executor not joyning in suit with another may any time before judgment release but after Judgement he cannot because then it is altered in nature and turn'd into Rem Judicatam And though many Executors to one and the same Testator make but one Executor yet the devastation wast or misdoing of one shall not charge the rest nor make their Goods lyable for recompence but himself shall answer for it with his own Goods yet no further than the value of the Testators Goods so wasted or misadministred 2. If one of the Executors where there be Two or more grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no Parts or Moities between Executors Thus if an Horse come to four Executors each hath a Horse and yet all four have but one Also though a Lease for One thousand Years of One thousand Acres of Land come to Two Executors or more no partition or division can be made between them because it is not between them as between joynt-Lessees of Land where each hath but a Moitie in Interest though possession of and through the whole but among Executors each hath the whole and therefore if he grants his part he grants the whole yet one Executor may demise or grant the Moitie of the Land for the whole term and so may the other and this way they may settle a Moitie for each in some Third person intrusted for them but one Executor cannot make a Lease to the other of any part because he had the whole before nor can one of them Sue the other as Executor unless the Testator devise to one of his Executors all his Goods after such Debts and Legacies paid and satisfied for in such Case after satisfaction thereof that Executor may take the remainder of the Goods and maintain an Action of Trespass against the other if he take them from him and consequently an Action of Detinue if he keep or detain them but this he may do not as
per parol and Cited a Rule in the Civil Law Non vult esse haeres qui ad alium vult transferre haereditatem and Haereditas est totum jus quod defunctus habuit And to the second matter he said Qui semel repudiaverit haereditatem amplius haereditatem petere non potest and Qui semel repudiaverit shall not after be Executor quia transit in contractum And that Executors cannot refuse for one time but for ever but they may pray time to Advise or Consider of taking upon them the Executorship and it ought to be granted and in that Case the Ordinary is to grant in the mean time Letters ad Colligendum c. but is not to grant Administration And for these Reasons there being a refusal the Grant made after Administration committed was void and so was the Opinion of the Court. CHAP. XX. Touching what Acts may or may not be done by an Executor as well before as after Probate of the Will 1. An Executor may before Probate of the Will enter into the house of the Heir to seize on the Testators Goods 2. A limitation or qualification of that Power 3. In what Case payment must be made by or to an Executor though no Will yet Proved by him 4. What Actions an Executor before Probate of the Will may or may not maintain 5. An Executor may before Probate of the Will make an Inventory of the Testators Goods and Chattels 6. Several other things which an Executor may do before he hath Proved the Will 7. An Executor may retain the Testators Goods to satisfie his own Debt 1. THe Power of an Executor dependeth wholly upon the Will and designment of the Testator Now an Executor may before his Proving of the Will seize and take into his hands any of the Testators Goods yea enter into the house of the Heir if not locked so to do and to take the Specialties of debts and generally he may do all things which to the Office of an Executor pertaineth except only bringing of Actions and prosecution of Sutes for they cannot Sue till they have the Will under the Seal of the Probat-Office 2. Although an Executor may after the Testators death enter into the house where he lived and died and where his Goods are and thence take them away even before Probate of the Testament yet understand it with this caution That he must do this within convenient and reasonable time as within or about thirty dayes next after the Testators death and that also in a due and peaceable manner when the doors are open 3. An Executor may also before Probat of the Will pay debts and receive debts and make acquittances of debts owing to the Testator Yea if before such Proving of the Will the day be come for payment upon Bond made by or to the Testator payment must be made by or to this Executor though the Will be not yet Proved and that upon like pain of forfeiture as if the Will were Proved Also an Executor may before Probate give or sell any of the Goods and Chattels of the Testator not otherwise bequeathed in the Wiil and for the same may maintain his Action 4. For an Executor for Goods of the Testator taken from him or for a Trespass done upon the Lease Lands or for a distraining or impownding of the Goods or Cattel may maintain Actions of Trespass or Replevin or Detinue even before the Will be Proved because these Actions arise out of the Executors own possession But an Action of Debt or the like contracted by the Testator he cannot maintain before the Will be Proved for therein he must shew forth the Will Proved under the Court-Seal And as at the Common Law If a man be bound to another in a certain summ of money to pay at a certain day and the Obligee before the said day Release unto the Obligor all Actions he is barred of the duty for ever though he could not have an Action at the time of the Release made even so may an Executor before Probate of the Testament Release an Action And the Reason of both is because the right of Action is in them for that the Debt is a thing consisting meerly in Action and therefore though no Action as yet then lieth for the Debt yet because the Right of Action is in them the Release of all Actions is a discharge of the Debt it self 5. Another thing that an Executor may do before the Proving of the Will and which is expedient for him though as yet not so necessary is the making of an Inventory for the Executor had need be cautious that he do not intermeddle with or Administer the Testators Goods until he hath made an Inventory for although the Act of an Executor is said to hold in Law before the Proving of the Will and the making of an Inventory yet for intermeddling with the Testators goods as Executor before he hath made an Inventory or caused the same to be made though not exhibited he was according to Law punishable unless it were for doing such things as could not conveniently be deferred till the Inventory were made as concerning things relating to the Funerals or disposing such things as Servando servari non possint and such like Besides if he make not an Inventory and yet Administer he may be compelled to discharge out of his own purse more Debts and Legacies than happily the Testators Goods and Chattels did amount to 6. There are several other things which an Executor may do before he hath Proved the Will and he may also keep any of the Goods of the Testator so as he pay out of his own money the value thereof in Administration of the Testators Estate he may also if he want money to pay Funerals or discharge Debts sell any of the Chattels Real or Personal whereof the Testator died possessed yea though that thing were particularly bequeathed As if a man be possessed of a Term of years and bequeath the same to A. B. the Executor may notwithstanding the bequest at any time before his Assent given to the Legacy if he have not Assets sufficient to pay the Debts sell this Term of years and the Legatee is remediless So also he may do although there be Assets enough besides to pay the Debts but in such Case the Legatee may not be without all relief in a Court of Equity against the Executor as to Dammages but the Sale is unavoidable Lessee for years Devised his Term to one whom he made his Executor and died The Devisee entered before any Probate of the Will and held and enjoyed the Land for a year and more without Proving of the Will and then died it was a Question whether his Executor or in Case he died Intestate his Administrator should have the Term It was the Opinion of the Court That the Term was lawfully setled in the Executor by his Entry and it
or imployed for the Intestates use it is reasonable that he should be charged for them Popham and Fenner è contra For the Administrator hath an absolute interest and power to dispose of the Goods untill the Repeal be made and it is not like unto an Appeal upon a Sentence for that makes it as no Sentence but the Repeal of the Letters of Administration doth not void it ab initio and make a lawful Act Tortious but rather in this Case the new Administrator shall have an account for the money received and the words in the Sentence are not to be regarded for they are common and ordinary in all Sentences So he having the Goods lawfully and converting them lawfully shall not answer for them as for a Tort done And Popham here said If Administration being committed the Ordinary commit new Administration it is a Repeal of the former without any Sentence of Appeal and if the first Administrator wast the Goods the Debtee shall have the Action against him and if he pleads that Administration is committed over he may well by this Replication maintain it because he wasted the Goods when he was Administrator wherefore c. Et Adjournatur but afterwards the Action was discontinued by the Plaintiff Debt against one as Administrator to N. upon an Obligation the Defendant shews the Custome of London to be That if a Contract be made by a Citizen to pay money to another Citizen and he who made the Contract dies that his Executors or Administrators shall be chargeable therewith as if it were upon an Obligation and shews further how the Intestate was indebted upon a Contract to A. who had Recovered against him and that he had Riens ouster en ses maines c. And it was thereupon demurred Glanvile moved that this Custome was not good For 1. it is against Law That an Executor or Administrator should be charged upon a simple Contract wherefore c. Daniel è contra The Custome was alwayes to bind the Executors or Administrators to pay Debts upon Contracts and Customes in London are confirm'd by Parliament and are now as strong as a Statute and therefore in London they prescribe to give Land in Mortmaine which is against Statute Law and there is not any Custome but that it deprives and is against the Common Law in some point And this Custome is reasonable for a Debt upon a Contract is as well due as a debt upon an Obligation and therefore there is as great reason for the payment of the one as of the other although the Law hath given a greater Prerogative viz. a Priority of paying the one rather than to the other c. Owen Justice The Custome is reasonable for the Executor in Conscience is bound to pay Debt upon a Contract as well as upon a Specialty and such a matter was about four years since in this Court but not adjudged And of that Opinion were the other Justices especially as this Case is being executed against him who is liable and chargeable by the Customes of London Adjudged per totam Curiam That where an Executor is Plaintiff for any thing touching the Testament and is Non-suite or Verdict pass against him he shall not pay Costs by the Statute of 4 Jac. For the Statute ought to have a reasonable intendment and no default can be presumed in the Executor who complains because it concerns other mens Fact whereof he can have no perfect knowledge and so it was resolved and adjudged by all the Justices of the Common Pleas. Quod Nota. A Judgement establish'd by both Courts contrary to some few Presidents which were in B. R. to the contrary Quod Nota. CHAP. XXIV Of Assets charging Executors or not 1. What Assets are and the several qualifications thereof 2. Whether Dammages recovered by an Executor be Assets 3. Mortgages redeemed by the Executor and Chattels reverting to him upon failure of some Condition by the Legatary to be performed are Assets in his hands 4. Encrease gotten to Executors by Merchandizing with the Testators Goods and other things never in the Testators possession are Assets in the Executors 5. Debts due to the Testator are no Assets in the Executor till recovered or released by him 6. Whether Land devised to be sold for payment of Debts and Legacies be Assets 7. An Executor dying indebted and leaving to his Executor such Goods as he had as Executor These are not Assets in such Executors Executor lyable to the last Testators Debts 8. Whether an Advowson be Assets 9. How real Chattels may turn into Personal Assets 10. In what Case a Debtee-Executor may retain Money or Goods of the Testators which shall not be held Assets as to other Creditors 11. Other mens Goods in the Testators possession at his death shall not be Assets in the Executors hands 12. Executors discharged of Assets as to so much as they pay of the Testators Debts with their own Money or Goods 13. Certain Law-Cases touching Assets 1. ASsets are where one indebted dieth Testate or Intestate and his Executor or Administrator hath sufficient in Goods or Chattels or other Profits to pay the deceaseds debts or part thereof and for so much he shall be charged So that all such Goods Chattels and Actions which did belong to the deceased in right of Action or Possession as his own and so continued to the time of his decease and which after his death the Executor or Administrator doth get into his hands as of right of his Executorship or Administration and all such things as accrew to the Executor or Administrator by reason thereof and nothing else shall be Assets in their hands to oblige them in Law as chargeable to the deceaseds Creditors or Legataries So that all things valuable may be Assets but such things as are not valuable are not Assets Note that Assets in the hand of any one of the Co-Executors shall be understood as Assets in the hands of all the Executors be it in any County or place whatsoever All the Testators Goods and Chattels in Action or in possibility at his death and afterwards recovered by his Executors are Assets in their hands but not till recovered and come into their possession therefore Debts of any kind whatsoever due to the deceased are not Assets in his Executors or Administrators hands to charge them until they be Recovered But whatever an Executor or Administrator must Sue for by or under that Name or Appellation is being Recovered Assets in his hands Yea notwithstanding an Executor or Administrator doth purchase the Fee-Simple of that Land whereof he had a Lease for years in right of the deceased whereby the Lease is drowned yet the said Lease shall still continue to be Assets in his hands Or if Executors do sell the Goods of Testators and buy them again they remain as Assets in their hands because they are the same Goods which were the Testators If a man hath a
value upon the appreyzment is not binding nor much to be respected in a contest at Law for if it be too high it shall not prejudice the Executor if too low it shall not advantage him but the very true value as it shall be found by Jury when it comes in question Whether the Executor hath fully Administred or hath Assets or not is that which is binding in Law 6. If a man give Lands by his Will in Fee to his Executors to be sold for performance of his Will these even before the money be raised are Assets both for payment of Debts and Legacies But if the Land be given only for payment of debts they shall then only be sold for that purpose and not for payment of Legacies But the profits of the Land before it be sold are not in that case Assets but let the Executor see to the sale thereof in due time limited and prescribed by Law lest the Heir Enter for Regularly the mean profits of Lands devised to be sold shall not till the sale be Assets in the Executors hands unless it be otherwise devised by the Testator And although Lands devised to Executors for years are Assets in their hands yet if the Testator Devise that his Executors shall sell his Lands this is not Assets until the Land be sold and the money received for the same shall be Assets Notwithstanding what hath been here said in this point and although Lands given for the payment of Debts and Legacies were Assets before the Statute of 21 H. 8. cap. 5. which sayes indeed that if one Will by his Testament any Lands c. to be sold neither the money thereof coming nor the profits taken shall be accounted as any of the Goods or Chattels of the Testator yet since that Statute viz. in the late Queens time the Law was twice admitted still to be according to the third of H. 6. viz. That Land given to Executors for the payment of Debts and Legacies is Assets and so the money thereof coming Likewise if a man make a Feoffment upon Condition that the Feoffee shall sell the Land and distribute the money to the Testators use whereupon he selleth the Land and the Feoffor maketh him his Executor the money received for the Land sold shall be Assets in his hands 7. As the Goods which a man hath as Executor to another are not liable to be taken in Execution for his own debts either upon Recognizance Statute or Judgement had against him So if such a one die indebted leaving to his Executor such Goods as he had as Executor these shall not be Assets in the hands of such Executors Executor as subject to the payment of the Last Testators debts but liable only to the payment of the Debts and Legacies of the first Testator 8. If the Grantee of the next Avoidance of a Church dies after the Church becomes void and before he presents In this Case the Grantees Executor by presenting whom he please shall not thence be understood to have Assets for the payment of the debts of such Grantee or Testator for that legally no profit could be made of such presentment yet if in that Case a Stranger should happen to present and thereupon such Executor of the said Grantee in a Quare Imped recover Dammages the money of such Dammages so recovered shall be Assets Yet it is by good Authority said That an Advowson is Assets but a Seigniory of Homage or Fealty or in free Almoigne is no Assets because not valuable 9. As the Testators Debtors Land after Execution taken by the Executor in Extent turns a Personal Duty into a Real Chattel and into Real Assets So money paid to the Executor by such a Debtor for such an Extent or by a Mortgage for a Mortgage of a Lease for years turns these Real Chattels into Personal Assets charging the Executor Note that Assets must be in State or Interest and not in use or right of Actions or Rights of Entry for they be no Assets until they be brought into Possession 10. A Debtee making the Debtor his Executor or dying Intestate Administration be committed to the Debtor this Debt as for so much shall still continue as Assets in his hands as to other Creditors yet a Debtor making the Debtee his Executor he may retain so much as to satisfie his own debt and it shall not be deemed as Assets to any other Creditor As suppose A. B. having Goods to the value of One hundred pound dies Intestate and obliged to C. and D. in One hundred pound a piece the Administration of whose Goods is committed to E. F. and then afterwards C. dying maketh the same E. F. his Executor In this case the said E. F. may retain the One hundred pound for satisfaction of his own Debt and it shall not be deemed as Assets in his hands as to satisfie D. or any other Creditor But an Executor of his own wrong to whom the deceased was indebted in a certain summ of money entring upon so much of the deceaseds Goods to the value of his debt thereby intending to pay and satisfie himself shall be held chargeable with so much as Assets in his hands for the satisfaction of any of the deceaseds Creditors or Legatees Likewise the Executors of an Administrator are chargeable where he did neither pay the debts nor leave the Goods to the Administrator but otherwise disposed of them 11. Other mens Goods and Chattels in the Executor or Administrators hands that were in the deceaseds possession whether he had or had not right to them so as they belong not to the Executors make not the Executor or Administrator chargeable they being not Assets in his hands For this reason if another mans Goods happen to be among the deceaseds goods and they all without distinction come to the Executors or Administrators hands this other mens Goods shall not be Assets in their hands Nor are Rents belonging to the Heir though received by the Executor any Assets in his hands neither are the Goods and Chattels of a person Deceased and Out-lawed at the time of his death any Assets in his Executors hands because he was disinteressed thereof by the Out-Lawry 12. An Executor having Goods of the deceased to the value of One hundred pound taking up an Obligation of the Testators of the same summ and really paying the money is discharged from having Assets as to this to any other for that the property thereof is now solely in himself The Case is the same if he surrender his own body or give the body of another for him to the Testators Creditor for the debt but a bare Promise made by the Executor or another for him to pay the Testators said debt will not discharge him of Assets But if Executors do really pay the Testators Debts of their own Goods they may retain the Testators Goods to the same value to their
own use So that the Executor paying the just value of the Testators Goods to his Creditors may retain the same Goods in his hands which shall not charge the Executor as Assets Finally this is a sure Rule That where no fault is in the Executor there he shall not be bound to pay more for his Testator than the Testators Goods do amount unto 13. Action of Debt was brought against Executors the issue was whether there were Assets in the hands of the Executors the day of the Writ brought it was given in Evidence for the Plaintiff in the Action That the same day the summ of One hundred pound was paid to the Executors in the Prerogative Court and presently by the Order of the said Court the Executors paid the said One hundred pound to another Creditor of the Testator but the Opinion of the Court was in regard the money was once in the Executors hands that payment of it over by the Order of the Court of Prerogative was not to the purpose and therefore the same was adjudged to be Assets in their hands But yet it was holden That upon special pleading of such matter peradventure it might not be Assets in their hands to pay another debt When an Administrator compounds with one who hath a Judgement of One hundred pound for Sixty pound who offereth to acknowledge satisfaction upon Record and the other defers it to the intent to suffer it to stand in force to deceive a Creditor this shall not hurt the Creditor but he shall recover and the money remaining in the Administrators hands-shall be Assets notwithstanding such Composition If I devise Lands to my Executors for Three years for the payment of my Debts and I make Executors and dye this is Assets in my Executors hands But if I Devise my Land to be sold for the payment of my Debts and I make Executors and dye this is no Assets before the Lands be sold Also if an Executor doth make gain of the Testators money the same shall be Assets in his hands It is not requisite that every Assets be a thing in possession or once in the hands of the Testator for a thing may be Assets which was never in the Testators hands if those things come in lieu of the things which were in the Testators hands as money for Land or other Goods sold Also things in Action or Possession certain or uncertain if they be released are Assets the reason is because by such release is given away that which might have been Assets And therefore if Trespass be done to the Testator in his life-time for taking his Goods and he dieth and his Executors release all Actions the same is Assets because it might be proved to the Jury That had the Executors not released but had brought their Action of Trespass de bonis asportatis in vita Testatoris that they might have recovered Dammages which would have satisfied Debts or Legacies and therefore the release of Executors in such Case shall be Assets An Administrator may take the Goods which are given by the Intestate to defraud Creditors for that the gift is void and therefore they shall be accounted Assets Also if a man doth Administer as Executor and then takes Letters of Administration it is at the Election of the party to Sue him as Executor or Administrator If a Testator Mortgages a Lease for years and dies his Executors may redeem it with their own money and the Lease shall be Assets in their hands for so much as the Lease is worth above the summ which they paid for the redemption of it If a Debtee dye Intestate and the Ordinary commit Administration to the Debtor whereby the debt is extinct yet it shall be Assets in his hands as to debts because the Ordinary had no power to discharge the debt as was agreed per Curiam If a Feme Executrix to her former Husband take another to Husband to whom her former Husband was indebted the debt is extinct and shall not be Assets It was held by all the Justices That if a Feme Executrix hath a Term and she take a Husband who purchased the Reversion the Term is extinct as to the Feme if she survive yet in respect of all Strangers she shall account as Assets in her hands Debt against D. as Executor the Defendant pleads Plenè Administravit and issue upon Assets the Jury found that he Administred and had Assets in Ireland And whether that were Assets here they prayed the discretion of the Court and all the Justices besides Walmesley held that it was well found for they may find a thing in Ireland and when they find that he hath Assets that is sufficient and when they further say in Ireland it is idle and vain It was therefore adjudged for the Plaintiff Debt against the Defendant as Executor of J. S. he pleaded Fully Administred c. and upon a special Verdict it was found that J. S. made the Defendant his Executor being then within Age and thereupon the Ordinary committed Administration to A. and B. who Administred and they had in their hands when the Defendant came to his full Age of the Goods of the Testators Six hundred pound and the Defendant at his Age Proved the Will and then released to A. and B. all Actions And it was adjudged that it was Assets Anderson said The doubt was because it was uncertain what he released and for that only an account lyeth but here the certainty appeareth by the Verdict And Piriam said If an Executor doth release an account and it is not certain what he shall recover it is not Assets but if it can appear or be Proved that so much was due it is Assets For the Law presumeth he hath received so much as he doth release and the Plaintiff had Judgement Nota Rhodes said That in 17 Eliz. it was Ruled that where one made his Last Will and thereby willed That none should have any dealing with his Goods until his Son came to the Age of Eighteen years except J. S. that by this J. S. was Executor during the minority of the Son and that it hath been adjudged that when as one upon his death-bed said to his Wife That she shall pay all and take all by this she was Executrix Debt upon an Obligation against one as Executor of A. the Defendant pleads plenement Administravit and issue thereupon the Jury find a special Verdict That A. made E. his Executrix and died possessed of divers Goods which E. made a fraudulent gift of all her Goods to J. S. c. and continued in the possession of them and took the Defendant to Husband and died That the Defendant is possess'd of part of these Goods to the value of c. and paid Legacies and if those Goods should be found to be Assets in his hands they found for the Plaintiff and if c. then for the Defendant
they both live but after her death it may be otherwise yea and if a void Administration happen to be committed and the Administrator wast the Goods and then Administration be committed to another in this case the former Administrator may be charged by the Creditors for the wast done in his time 4. But for an Executor or Administrator without fraud to sell the Goods of the deceased under value especially where more cannot conveniently be made of them is no wast Nor shall one Executor or Administrator be charged for the wast done by another for where there are many joynt-Executors if only one of them doth commit the wast he alone shall suffer for it So the Executor or Administrator committing Wast in the Gift or Sale of any of the Goods of the Defunct shall answer it alone and not he to whom the Goods are so given or sold yet the Executor or Administrator of such an Executor or Administrator shall not be question'd for it after his death Also an Executor or Administrator may lawfully sell or convert the deceaseds Goods to his own use so as he convert the money thereof to the deceaseds use in payment of Debts or the like and pay so much of his own money as the Goods so converted to his use are worth and this shall not be imputed to him as a Wast Yea he may sell any special Legacy that is bequeathed and even this shall be no Wast in him though it be a wrong to the Legatee in case there be Assets to pay Debts besides But when he hath enough to pay all the Debts and Legacies then he may dispose of the whole Estate how he please without any prejudice to himself or others And note That the wasting Executor doth not incurr dammage or make his own Goods lyable for satisfaction for the Wast further than the value of the Testators Goods so wasted or mis-administred doth amount unto An Action of Debt was brought against Two Executors one appeared and confessed the Action the other made default and Judgement was given to recover de bonis Testatoris in both their hands whereupon a Scire Facias issued The Sheriff returned Nihil but he who made default had wasted the Goods upon which a Scire Feci issued against him who had wasted the Goods and upon Return of the Scire Feci Execution was awarded of his own proper Goods only without his Co-Executor 5. If the Executor confess he hath Assets supposing the Executor to be Defendant then may the Sheriff Return a Devastavit If the cause of Action be against Executors or Administrators the Judgement is to recover the Debt and Dammages of the Testators Goods if the Executor hath so much in his hands and if he hath not then the Dammages as was formerly shewn of the Executors or Administrators own Goods And if the Sheriff upon a Scire Facias Return a Devastavit then a Fieri Facias or Elegit may be sued out to levy the Debt and Dammages of the Executors or Administrators proper Goods And if the Executor plead That he never was Executor nor Administred as Executor and it be found against him that he had Administred but one penny the Judgement shall be to recover the Debt and Dammages of the Executors own Goods And in a Case of Debt brought upon a Record the Execution shall be brought where the Record remains Judgement was given against B. in a debt of One hundred pound in C. B. After the said Judgement he entered into a Statute to J. S. and died Intestate his Wife takes Letters of Administration and removes the Record of the said Debt recovered against her Husband into B. R. by Errour depending the Sute she payes the Debt due upon the Statute to J. S. Afterwards the former Judgement is affirmed On a Scire Facias against the Administratrix to have Execution she pleaded payment of the said Statute beyond which she had not Assets Upon this the Justices of the Kings Bench were divided viz. Popham and Gaudy against Fenner and Yelverton It was referred to the Opinion of the other Justices they joyned in Opinion with Fenner and Yelverton and judged it a good Plea and that the paying of the Statute was no Devastavit for at the time of the Execution of the Statute she could not plead the Judgement of C. B. it being then doubtful whether it would be affirmed or not therefore no default in the Wife-Administratrix in paying and discharging the Statute for she could not have an Audita Querela nor any other Remedy to be freed from payment of the Statute at the time of the Execution thereof CHAP. XXVII Of the Executors power in Sale of Lands devised to be sold 1. The difference between a Devise that the Executors shall sell the Land and a Devise of the Land to the Executors to be sold 2. The profits of Land Devised to be sold are not Assets in the Executors hands for a time before such Sale 3. In what Case the Heir may or may not enter upon unsold Lands devised to be sold 4. Executors accepting may without others Refusing make a good Sale of Lands devised to be sold 5. In what Case surviving Executors cannot sell Lands devised to be sold 1. WHere Land is by Will appointed to be sold neither the money raised nor the profits shall be accounted as any of the Testators Goods or Chattels And when a man deviseth that his Executors shall sell the Land there the Land in the mean time descends to the Heir and until the Sale be made the Heir may enter and take the Profits But when the Land is Devised to his Executors to be sold there the Devise taketh away the Descent and vesteth the State of the Land in the Executors and they may Enter and take the profits and make sale according to the Devise Also when a man deviseth his Land to be sold by his Executors it is all one as if he had devised his Land to his Executors to be sold because he then likewise deviseth the Land whereby he breaketh the Descent 2. If a Testator doth appoint by his Will his Executors to make sale of certain Lands for the use and behoof of the said Testator and the Lands after the Testators decease happen to remain some time unsold the Profits thereof in the said time before such sale made shall not be Assets in the Executors hands unless the Testator did devise That the mean Profits till the Sale should be Assets in their hands for otherwise they shall not be so though the Executors in this Case have no Estate or Interest in the Land but only a bare and naked Power and Authority 3. But if the Executors having power to sell the Land of the Testator defer the Sale thereof after the offer of a reasonable price converting the Profits thereof to their own use the Heir may lawfully Enter to the Land and put out the
Executors if they have no further Authority or Interest than only to sell the Land and distribute the money for then the Frank-Tenement doth descend to the Heir and the Executors are bound to perform the Devise in convenient time But if the money for the same be to be distributed in pios usus then the Frank-Tenement is in the Executors after the death of the Testator and not in the Heir So that in such Case he may not Enter as in the former Yea if Lands Devised to be sold be not accordingly so done by the Executors the Law will then enforce them to sell the Lands so soon as they can because the mean Profits in that Case taken before Sale are not Assets to charge the Executors as compellable to pay debts of the same But if a man Devise that his Executors shall sell his Land there they may sell it at any time for that they have but a bare and naked Power and no Profit 4. If many Executors be named in a Will wherein Power is given to them to sell Land for any purpose and some of these Executors refuse the Executorship In this Case the other Executors who stand to the Will may dispose and sell the Land without the consent of the other who so refused the Executorship But Note That an Executors Executor cannot sell the Land of the first Testator who by his Will gave Power to his Executor to sell the same unless there be a co-Co-Executor surviving 5. Although the surviving Executor may sell the Land which a Testator doth bequeath to his Executors to be Sold because as the State so the Trust shall survive yet in case the Executors in that part of the Will impowering them to Sell be particularly Named each by his particular Name and one of them refuse and dye before Sale made then the Survivors cannot sell the same because the words of the Testator one of the Executors refusing or being dead cannot be satisfied unless the Testator express in his Will a Power to the Survivors or Survivor of them or to such or so many of them as take upon them the Probate of the Will without which words the Executors being particularly Named it is otherwise But if the Land to be Sold be left to his Executors generally not particularizing their Names then Sale made by some of them only in this Case is good for that now by the Statute of 21 H. 8. cap. 4. it is Provided That where Lands be Willed to be sold by Executors though part of them refuse yet the residue may sell But here Note That they may not sell to him that so refused because he is yet a party and privy to the Last Will and remains an Executor still so long as any co-Co-Executor lives For it was the Opinion of the c. Note that by the Opinion of the Justices if a man makes his Last Will and Wills that his Executors shall sell his Land and Devises his Land to his Executors to be sold and one of the Executors refuse the Administration of the Testators Goods before the Ordinary the other Executors cannot sell the said Land to the Executor so refusing the Administration by the Statute 21 H. 8. cap. 4. For that Executor notwithstanding such his refusal is still a party and privy to the said Testament and is one of the Executors at his pleasure It was adjudged in B. R. between Vincent and Lee where a man devised That his Sons in Law should sell the Reversion of his Land without mentioning their particular Names if some of them dye that the others may sell Upon a special Verdict the Case was A man seised of Lands in Possession and of other Lands in Reversion upon an Estate for life Deviseth by his Will in writing That his Executors should have all his Lands Free and Customary in D. for Ten Years to perform his Will and the Will of his Father with the Profits thereof and that after the Ten Years his Executors or any of them should sell it for the payment of his Debts He makes Three Executors and dies The one dies the Ten Years expire Tenant for Life dies the Two surviving Executors sell the Land c. Spurling This Sale is not good 1. The Reversion of the Estate for Life passed not because he had other Lands there to satisfie the words and it was not his intent to pass it because there were not any Profits to be taken thereby 2. The Sale by the Two surviving Executors is not good for it ought to have been by all or by one of them only But the Court resolved to the contrary in both wherefore it was adjudged accordingly The same Case is Reported by Anderson thus viz. J. T. brought Ejectione Firmae against J. W. and others The Defendants pleaded Non Culp whereupon Special Verdict was given the which in effect was That one Smith being seised of Twenty Acres of Land made a Lease thereof to one for Life and being also seised of Sixty other Acres made his Will in manner following viz. I Will and Charge my Executors and every of them to fulfill my Fathers Will and this my Last Will in which were divers Legacies In Consideration whereof I give all my Lands and Tenements to my Executors and they to take the Profits thereof by the space of Ten Years and those Ten Years ended I will the same to be sold by my said Executors or by one of them And made Three Executors and died after the Tenant for life died one of the Executors died also The Two Executors Enter on the Sixty Acres and receive the Profits thereof for Ten Years but Entered not on the Twenty Acres but after the Ten Years ended the surviving Executors sold the Twenty Acres to J. H. who Entered and Leased the same whereon the Action is brought It was said That the Executors did not Sell but it was adjudged that the surviving Executors might Sell For it appeared that the Intention of the Testator was That the Land should be sold for the performance of his Will which the surviving Executors might Execute and consequently do what the Testator appointed in order thereunto CHAP. XXVIII Of Debts Legacies and Mortuaries and the Executors method in the payment thereof 1. Debts to be paid before Legacies 2. The Executor may pay himself first 3. What Debts to the Crown shall have priority of payment before Debts to the Subject 4. Judgements upon Record to be satisfied next after the Debts due to the Crown 5. Next after Judgements upon Record Debts by Statutes or Recognizances are payable before meer Personal Debts 6. After Statutes and Recognizances Debts due by Obligations or penal or single Bills are to have the next precedency in payment 7. Debts upon Specialties Bonds and Bills are to be satisfied before Debts upon a simple Contract 8. After Obligations Debts due upon simple Bills Merchants Books and other Specialties are
because the presumption of Law is That his mind is not altered unless it may otherwise appear by sufficient Evidence Therefore the Testators words are specially to be referr'd to the Time when the Testament was made and most especially if the Testators words be generall words So that if a Father bequeath to his Son who is a Student all his Books and after buy other Books those other pass not by that Legacy Or if he bequeath 10 l. to his Parish Church and after remove his Habitation into another Parish where he dyes the 10 l. is due to the Parish wherein he lived at the time of making his Testament and not to the Parish wherein he dyed Yet if the Testator bequeath any thing to his Kindred in such general words the Kindred which were at the time when the Testament was made are not so included as to exclude such as were his Kindred at the time of his death Also if a Testator bequeath his Moveables such only are understood to be bequeathed as were the Testators when he made his Testament Likewise if the Testator Bequeath Releases to all his Debtors there are no more comprehended in that Legacy then were his Debtors when he made his Testament Or if he give to a certain Hospital all his Moneys in the Bank or in Bankers hands after his Debts paid and there be at that time a 1000 l. in their hands over and above his Debts and he lives so long that at his death there is 3000 l. in their hands above his Debts In this case there is only one 1000 l. due by that Legacy to the Hospital because the Legacy is to be computed according to what he had in their hands at the time of making his Will and not according to what he had at the time of his decease Also if he Bequeath all his Moveables having at that time Fruits of the Earth not seperated from the Soyl which yet afterwards and before his death are seperated In such case such Moveables pass not by that Bequest because they were not Moveables at the time of making the Testament But this is not uncontrovertable for in this point there are some of the Learned of another Opinion Or if a Man Bequeath so many pieces of such a certain Coyn which afterwards doth rise or fall in its value The Legacy in that case shall be estimated as the said Coyn was in value at the time when the Testament was made not at more nor less Also if a House with all things therein be Bequeathed such things as the Testator afterwards brings into that House are not within that Legacie And here observe That what has been said as to the Time of making the Testament holds True likewise and so is to be understood as to the time of making a Codicil the words whereof are chiefly to be referr'd to the time of the making thereof Insomuch that in case by way of Codicil a man Bequeath all his wearing Apparel to his Wife and after some Tract of Time makes a Will and dyes no more Apparel doth pass by that Codicil supposing it not contradicted by the Will then the Testator had when he made that Codicil And yet notwithstanding all this which hath been said that the Time of the making of the Testament is chiefly and specially to be referr'd to in the due Construction of Legacies yet this is to be understood only when the words of the Testator speak of the time Past or Present Not when he speaks of the time to come by words of the Future Tense Nor when he speaks by such words of the Present Tense as cannot take effect but for the future Also when the Legacy is Universal under some Name Appellative and in its Nature Collective as Herd Flock and the like such a Legacie admitting of Increase and Decrease the Time in that case of the Testators death is more to be inspected and considered then the Time when he made the Testament So likewise if the Testator willeth that such a one shall dispose of the Profits of his Estate it shall be understood of such Profits thereof as were at the Time of his death because the word Profits is universal and therefore not to be restrained only to the time of the making of the Testament Or if he Bequeath his Money in the Bank the Profits thereof at the time of his death shall pass by this Legacy which if you observe it differs from that Case of money in the Bank abovesaid also if the thing Bequeathed be such as is in ordinary use and by using is consumed and another of like kind had instead thereof That other shall pass by this Legacy for in such case not the Time of making the Testament but the Time of the Testators death shall be considered Nor is the Time of the Testaments making so considerable when the Legacy is Conditional for then the performance of the Condition will fall under chiefest Consideration Also the Time of the Testators death when it most tends to the upholding of the Testament is more considerable then the Time of the making thereof And therefore though the words in the Testament be of the Time Past or Present yet in that the Will of the Testator holds free and good even to his last-Breath They shall also Refer to the Future in those things that depend on the meer Will of the Testator And if he Bequeath indefinitely his Corn it shall be understood all such as he hath at the time of his death Observe finally That if the Testators words in a Bequest be doubtful whether they Refer to the Time Past or to the Time to Come they shall be understood to relate unto the time that is to come 4. Where a Devise is made of Goods if the Executor will not Deliver the same to the Devisee he hath no Remedy by the Common Law but must have recourse against him by way of Citation out of the Ecclesiastical Court to appear before the Ordinary to shew cause why he performeth not the Testators Will for the Devisee may not take the Legacy and serve himself but it must be Delivered to him by the Executor So that the Legatary hath no Remedy by the Common Law for any Legacy of Goods to him bequeathed except as that Law sayes in case where some particular thing as the Testators Horse Signet or the like is bequeathed Or if the Testator willeth that his Executors shall sell his Land and pay such and such Legacies out of the Proceed of the Sale thereof in such case the Legatories may Sue at the Common Law for the same But if the Legacies be Bequeathed to be paid out of Leases and not out of Fee-simple Lands then the Legatary may likewise Sue in the Ecclesiastical Court for the same For though Legacies
in the Womb at the Testators death seems to be void Yet if a Man Devise to such an Infant and he happen to be Born before the Testators death it seems that in this case the Devise is good Again A Devise made to a person altogether uncertain and not certainly Named or Described is altogether void yet a plain Description of a Person without naming him is sufficient so that a Devise made to the Dean of Pauls without naming him is good A Man Deviseth his Land to Elianor the Daughter of I. S. who hath divers Daughters whereof one is named Hellen and none Eleanor This is a good Devise to Hellen. Likewise if a Man hath Two Wives and he Deviseth his Land to his latter Wife in Fee the first Wife shall have it or if he hath Two Sons called John and one of them is a Bastard born before Marriage and he makes a Devise to his Son John the Legitimate John shall have it and not the Bastard The Husband can be no Devisee as to a Devise of Lands from his Wife There are Three Brothers by the same Father and Mother and the middle Brother Seized of Land Deviseable giveth it by his Testament Propinquiori fratri suo it seems that neither of them shall have it Suppose a Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth leaving Executors his Heirs shall have the Land and not his Executors the Law is otherwise in case the Entire Term were so Devised A Devise of Land made to the Canons of a certain Cathedral for ever or Canonicis Ecclesiae D. Pauli Lond. in perpetuum is a good Devise to all the Canons joyntly in Fee and the Survivor shall have the Entierty If a Man willeth that his Executors shall Sell his Land for the Payment of his Debts and they all die save one who maketh the Sale in this case the Vendee shall not have the Land the Law were otherwise if the Land had been Devised to the Executors to be Sold. If a Man hath Issue a Son and Land is Devised to the Father Habend sibi Hered de Corpore suo Legitime procreand and after the Devisee hath Issue another Son the second shall have the Land If a Man Deviseth by the Will That after the death of his Wife the Land Devisable shall go to I. S. his Wife shall have it for her Life by this Devise Or if a Man willeth that after 20. Years after the death of the Devisor I. S shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 5 A Testament Nuncupative is not good for a Devise of Land nor a Testament made in Print if it were never written yet a Testament written though no Executor be named therein is good for Lands but not for Goods Likewise a Testament without Sealing or Subscribing is good enough for a Devise of Land so as it be put into Writing in the Testators Life Time although it be never proved before the Ordinary But if in a Testament there are these words viz. Haec est voluntas intentio mea A. B. c. This is not good for the disposition or devise of Land without saying ultima voluntas according to the Lord Dyers Opinion who in his Learned Readings on the Stat. of Wills 32. and 38. H. 8. if he were indeed the Author of that Impression 1648. doth further Affirm That if a Man makes a Testament of his Land in one County and long after makes a Testament of his Land in another County These are good Also that if Two Men severally Seized of Lands make a Joynt-Testament of their Land This shall be good and several Testaments Also that where a man is in making his Testament and having Devised a parcel of his Land dies before the perfection and finishing thereof This shall be good for so much as is Devised That a Man willing by his Testament that his Lands shall be Sold to pay his Debts not declaring by whom This is a good Will and shall be performed by his Executors or Administrators That a Man making a Will of Land in which he hath nothing and after Purchaseth the same Land and dyeth This is not good That a Woman Covert making a Will of her Land and after taking a Husband who hath Issue the Husband dyeth the Wife dyeth this is not a good Will That if a Man make a Will of his Land and after alien this Land in Fee and after repurchaseth the same Land This is not a good Will That a Man making a Will and after making a new Will and after on his Death-bed saith That the first Will shall be his last Will This is good Also that where a Man giveth Land by his Will in Fee and after by another Will giveth the same Land to another but for Term of Life This is a Revocation of the Entire first Will. Also if a Man Devise another Mans Land This Devise is void but if he after the Devise made Purchase this Land then the Devise is good CHAP VIII Certain Cases touching Devises of Land Void or not 1. Lands What and how Devisable 2. Certain void Devises of Land 3. To what Persons and in what Cases Devises of Land may be good or not 4. The same Lands twice Devised to several Persons in the same Will how both Devises may stand good 5. The Profits of Land Devised do pass the Land it self in which Case Testaments more favourably construed then Deeds 6. How Lands Purchased after a Devise of Lands made may pass by that Devise or not 7. Several Cases in Law referring to this Subject 1. ALthough Lands made Devisable by Statute cannot be Devised otherwise then by Will in Writing yet Lands and Tenements Devisable by Custom may be Devised by a Nuncupative Will without any Writing But Copy-hold Land is not Devisable nor can Tenants in Tail or pur auter vie or Joynt-Tenants Devise their Eestate in the Land they so hold no more then they could before the making of the said Statute which doth not impower them thereunto But such as are Seized of Land in Common or Coparcenary may devise the same And if there be Two Joynt-Tenants for Life and the Fee-simple to one of them he that hath the Fee-simple may Devise his Fee-simple after the death of the other Joynt-Tenant for Life And in such places where Lands were Devisable by Custom before the making of the Stat. of 32. H. 8. a Devise of Lands may be good against the Heir for the whole but by the Stat. impowering to dispose of Lands by Will a Devise of Land is not good against the Heir save only for Two parts in Three 2. He that Deviseth Land ought to have a Right to and possession of the Land he Deviseth otherwise the Devise is not good and therefore if
made his Testament in writing and Devised the Mannor to his Wife for the Term of 30. Years in these words viz. For and to these Intents and Purposes following viz. I will and my mind and intent is That B. my Wife shall yearly Content and Pay out of the Issues and Profits of the said Mannor to Sir A. I. and others 30 l. And further Wills That the other Legacies given in his Will should be paid by her and therein Devised divers Legacies And further Willed That his Wife should be bound to Sir A. and others for the performance of his Will F. C. the Devisor dies the Wife enters on the Land c. takes the Profits and thereof pays the Legacies but not to Sir A. and others c. Whereupon the Heir Enters as for breach of Condition It was held by the Justices that it was no Condition but a Declaration of the Testators intention for to what end or purpose should the Wife be bound if it were a Condition But Judgment was not given in the Case for the Parties agreed CHAP. XV. Touching Devises of Rents 1. Rents Issuing out of Lands are as Devisable as the Land it self so as it be the Testators own Land 2. A Grantee may not Devise the Rent which he hath only for another Mans Life 3. Rent to be Issuing out of a Common is not Devisable 4. Several ways how Rents may be Devised 5. The Devise of the Reversion of a Rent upon a false suggestion is a void Devise 1. A Seigniory Rent or the like is Devisable as Land is and will pass without the Atturnment of the Tenant So that a Man may Devise a Rent de novo issuing out of Land or a Rent issuing out of Land that is in esse before And therefore if one make a Lease for Life or Years Rendring Rent the Lessor may Devise this Rent Likewise if a Rent be granted to one and his Heirs the Grantee may Devise this Rent Also a Man that is Seised of Land in Fee may Devise any Rent out of it at his pleasure But a Man cannot Devise a Rent out of another Mans Land that is none of his own nor out of that which he hath not and therefore if one Devise Twenty Pounds to be issuing out of his Mannor of Dale when in Truth he hath no such Mannor that Devise is void 2. If Rent be granted to one Man for the life of another it seems the Grantee may not Devise this Rent but that on failure of other disposal thereof in the Grantees life Time the Terre-tenant shall hold it as an Occupant And if one Devise a Rent of any certain Sum out of his Land to be paid quarterly and say not how long the Rent shall continue this is but an Fstate for life of that Rent 3. If a Man Seised of a Common granteth a Rent out of the Land although that the Land be Devisable yet the Grant is void and by Consequence the Devise 4. If a Tenant for life make a Lease for Years Rendring Rent and after the Tenant for life Surrender to the Lessor all his Right and then the Lessor Devise this Rent this is a good Devise during the life of the Lessee for life Or if a Man make a Lease for life Reserving Rent to him and his Heirs and the Lessor Devise this Rent this also is a good Devise of the Rent otherwise it is if he Reserve the Rent to him and his Assigns Or if a Lessee for Term of Ten Years make a Lease over for Term of 40. Years and the Lessor confirm the Estate Reserving a Rent to him and his Heirs and after by his Will Devise the Rent in Fee this also is a good Devise of the Rent after the Ten Years but not before 5. A Man Seised of a Rent makes a Deed reciting that whereas I. S. holdeth the said Rent of his Grant for Term of life he grants the Reversion of the said Rent after the decease of I. S. to the Grantee and his Heirs in Fee and in Truth I. S. had nothing in the Rent the Grantee Deviseth this Rent this is no good Devise of the Rent If the Husband make a Leafe for life to the Daughter and Heir apparent of his Wife being Covert Rendring Rent and the Wife-Mother die and the Husband Devise the Rent this is a void Devise of that Rent In an Action of the Case upon Trover the Defendant justified and pleaded Rent granted to A. his Executors and Assigns for the life of B. out of Black-acre and shewed that A. was dead and that he as Administrator to A. distrayned for the Rent on Black-acre in Arrears after the death of A. and that he is to have it during the life of B. It was Adjudged That the justification was not good either for matter or manner for that after the death of A. the Rent determined and cannot come to his Executors or Administrators for it was not a Thing Testamentary but a Frank-tenement and nothing in the Grant to A. and his Heirs for the others life If Rent be granted out of Land Devisable by Custom the Rent may be Devised within the Custom for it is of the same nature with the Land CHAP. XVI Of Devises touching the Sale of Land by Executors or others 1. The mean Profits of Lands Devised to be sold are not Assets in the Executors hands unless the Testator shall specially so Appoint it 2. The Heir and not a stranger though appointed in the Devise shall take the advantage of a Breach of Condition annexed to a Devise touching sale of Lands 3. Where the Executors have only an Authority and not an Interest in the Lands Devised to be sold the Heir of the Devisor shall have the mean Profits thereof till it be sold 4. Otherwise where the Executors have an Interest in which case the Money or Proceed upon the sale but not the mean Profits shall be Assets in their hands 5. Several Devises touching sales of Land with or without the Assent of another 6. By the word Appurtenances shall pass in a Devise Lands commonly used with a Messuage 7. A Copy-holders Case of Devise of Land to his Wife 8. Where one who hath but an Estate for life and no Interest to sell may yet have an Authority to Appoint who shall sell the Lands Devised 9. In what Case relating to this matter a Prohibition may Lye or not 10. A Case of Law wherein one Executor alone where there are two can not sell the Land Devised 11. How a sale of Lands Devised to be sold may be void for want of sufficient Authority 12. In what case a Sale of Lands Devised to be sold may be made by one Executor where there are two Appointed by Name 13. Where there is an Interest as well as an Authority and Trust the Executor of the surviving Executor may sell the Lands of the first Testator Devised to be sold 14.
Executors who Refuse to Administer the Goods may yet sell the Testators Lands Devised to be sold 15. Lands Devised to be sold by Executors the one Refusing the other may sell but not to the Refuser 16. A Sale by some only of the Executors is void where there is a special and Joynt-Trust 17. The Difference between an Authority and an Interest in Executors in point of Sale 1. IN all Cases of Devises of Land to Executors to sell the same it is most Prudential to make it as clear and certain as may be that is That the Executors or the Survivor of them or such or so many of them as take upon them the Probat of the Will if his intent be so shall sell it And it is safer to give only an Authority than an Estate unless his meaning be that they shall take the Profits of the Land until the sale And if he do so then it is Requisite that he Appoint that the mean Profits until the Sale shall be Assets in their hands for otherwise it shall not be so 2. If one Devise Land to others to the intent that with the Profits thereof they shall Educate Children or pay such Sums of Money or the like In this case the Devisees must do accordingly or they may be compelled thereunto And Regularly the Heir and not a Stranger shall take the Advantage of a Breach of a Condition annexed to Devises touching sale of Lands And therefore if one Devise Land to another and his Heirs Provided that he pay 100 l. to A. B. Otherwise that the Land shall remain to C. D. and his Heirs in this case if the Devisee do not pay the Money C. D. shall not take Advantage of it nor have the Land according to the Devise but the Heir of the Devisor shall enter and have it and Eject the Devisee 3. If the Testator intending to have his Land or part thereof sold for the payment of Debts or Legacies doth Devise the same in this manner viz. I will that my Executors or that A. B. and C. my Executors shall sell my Land In this case the Executors have only an Authority and no Interest For which reason the Land in the mean time Descends to the. Heir of the Devisor who shall enjoy the Profits thereof until it be sold In which case also the Executors may sell it when they please unless they be hastned thereto by order of Court And are all to joyn in the Sale Insomuch that if one or more of them dye before the Sale the surviving Executors or the Executors of the deceased Executors may not sell it by this Authority The Case is the same if any of the Executors Refuse the charge of the Will in which Case the rest of the Executors which accept the said charge may not alone sell the Land unless the words in the Will be That his Executors or some of them shall sell it But now by the Stat. of 21. H. 8. cap. 4. Some of them may sell it without the rest in case any of the Executors dye before the Sale 4. But if the Testator Devise the Land in this manner viz. I give my Land to my Executors to be sold c. In this case the Exeeutors have as well an Interest in the Land as an Authority to sell it And therefore it doth not here descend unto the Heir as in the former case but the Executors shall keep it till the Sale and may sell it when they will so as it be within any competent or convenient time for otherwise the Heir may Enter and Eject them by a Condition in Law annexed to the Interest And in this case the mean Profits until the Sale is no Assets but the Money or Proceed upon the Sale shall be Assets in their hands And in this case if before the Sale one or more of the Executors dye or refuse the rest may sell it for the Estate surviveth But it is supposed they may not sell to him that doth refuse the charge of the Will Neither may they in either of these Cases transfer their power of selling to any other nor keep the Land themselves though they pay the value thereof with their own Money 5. If the Devise be that the Executors shall sell with the Assent of A. B. in this case if A. B. dye before he Assent the Executors can not sell and in his life-time they can not sell without his Assent And if one Deviseth that his Lands shall be sold to pay his Debts and say not by whom in this case it shall be sold by his Executors Or if one Devise all his Land except Ten Acres which he doth appoint to pay his Debts by this Devise his Executors or the survivor of them may sell the said Ten Acres But if one say by his Will that A. B. shall have as well the Guardianship and Education of his Children as the disposing letting and setting of his Lands in this case A. B. hath not power to sell the Land Or if one Devise that his Land shall be sold after his Wife's death by his Executors with the Assent of A. B. And make his Wife and another his Executors and dye and after A. B. dye In this case the Land can not be sold for the Authority is determined 6. Suppose a man seised in Fee of a Messuage with which certain Lands have been occupied time out of mind give his Instructions for the making of his Will inter alia declares That his meaning is that his said Messuage and all his Lands in W. shall be sold by his Executors And the party that writes his Will Pens it in this manner viz. I will that my house with all the Appurtenances shall be sold by my Executors the Devisor dyes The Executors sell part of the Lands By this Devise such Sale is good and the Lands do pass for the words with all the Appurtenances are effectual to enforce the Devise and extend to all the Lands specially because the Devisor gave Instructions accordingly 7. A Copy-holder Deviseth his Land to his Wife for her life and that after his death the Wife or her Executors should sell the Land and Surrendred to the use of his Will which was Entered thus viz. To the use of his Wife for life Secundum formam ultimae voluntatis In this Case she hath an Estate in the Land to her own use for her life and also an Estate in Fee to sell it otherwise the clause secundum formam ultimae voluntatis should be void 8. A man Deviseth by his Will his Lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of 21 years and if the Issue dye before that age or before his Wife or if she have no Issue that then she shall choose two Atturneys and she to make a Bill of Sale of any Lands to her best Advantage In
unto A. B. my Land called Blackdown which I value at 100 l. this estimation thereof by the Testator shall not alter the Condition of the Legacy as if thereby the Executor paying 100 l. to A. B. he shall be barr'd from having the Land in Case it be more worth On the other side if the Land be less worth then 100 l. the Executor is not obliged to supply that undervalue nor if it be more worth may he retain the overplus Or if the Testator say I give to A. B. my said Land and my Will is That if it be worth less than 200 l. that then my Executor shall make it up so much worth to him In this Case if happily the said Land be found to be more worth the Devisee is not obliged to restore the overplus-value 22. If a Testator doth appoint that his Executor shall Sell such Lands to A. B. at a Price certain limited by the Testator the Executor must abide by that Price which is so limited by the Testator though the Land be much more worth Likewise if a Testator doth by way of Condition to a Legacy enjoyn the Legatary to do some special Thing as the Repairing of a Church or the like which being finished the Reparations exceed the value of the Legacy In this Case none but the Legatary shall bear that overplus of Expence in the said Reparations And if an Executor be Appointed to give me such Lands or 100 l. In this Case if he doth not deliver me the Land I must have the 100 l. be the Land more or less worth 23. If a Testator Devise part of his Lands called Watermead to A. B. not expressing what part the Devise shall not be void by reason of uncertainty but A. B. shall have the one Moiety thereof And if the Testator himself had but a Moiety therein or other lesser part the Devisee shall have the one half of what the Testator had therein But if the Testator saith I give to A. B. that part of the House which I inhabited or was wont to make use of for my habitation if it be uncertain and cannot well appear which part of the House that was A. B. shall have the whole house so as no other than the Testator did inhabit or used to dwell therein 24. A man having several Houses in the City where he lives and others in other places saith in his Will I give one of my Houses to A. B. In this case A. B. shall not be excluded his Legacy by reason of uncertainty but shall have one of the Houses scituate where the Testator lived or if he saith I will that A. B. shall have one of my Houses he shall chuse which he will have But if the Testator say I will that my Executor give one of my Houses to A. B. In that case the Executor hath the election to give him which he please And in case the Legatary having the election makes more than necessary delays in determining his election the Ordinary at the instance of the Executor may fix him a time within which he shall finish the same in default whereof he may Decree the election to the Executor But if by the Testators Will the election be neither in the Executor nor in the Legatary but in a third person In such case that third person is to make the choice within one year next after he shall be thereunto required otherwise the election devolves to the Legatary whose choice in such case is not to exceed the Rule of Mediocrity And if the Legatary happen to dye before such election made by him his Executor shall have it 25. If a Testator doth by his Will appoint That his Executor shall within a certain time deliver into the right and possession of A. B. such or such Lands by name under the penalty of 100 l. In this case if A. B. the time being elapsed and the Land not delivered shall accept the penalty he may recover the 100 l. but not the Land But if he accept not the penalty he may recover the Land not the 100 l. 26. If a Testator in his last Will and Testament doth Devise in this manner viz. I give unto A. B. one of my Meadows or one of my Houses In this case the first choice is in the Legatary whether he will have one of the Houses or one of the Meadows But then the second election is in the Executor that if the Legatary chuse a House the Executor shall appoint him which he shall have 27. If the Testator Devise a House not expressing what House it is a uoid Devise if he had no House but if he had several Houses it shall be presumed to be that House wherein he usually dwelt if his intention appears not to the contrary And if the House Devised afterwards happen to be burned the ground whereon it stood is due and belongs to the Devisee But if it were pull'd down by the Testator himself and not re-edified it is otherwise for that implies a revocation of his mind and will But if a House Devised happen to fall in the life-time of the Testator the Legatary shall have the ground whereon it stood 28. Suppose there be a Mill joyning to the House which is Devised or it be erected at the end of the Wall of the House or Scituate at the end of the Orchard belonging to the House the Question is whether it shall pass to the Legatary with the Devise of the said House In this case if the Mill was built by reason of the House and to Grind for the use of the Family thereof it shall then pass with the House in the Devise thereof Otherwise if it were built to produce an Annual Rent or to Grind for any Strangers whatever unless it stand upon part of the ground of the very principal Mansion house and within the Precincts of the same 29. Suppose a man doth purchase certain Tenements of A. B. and other certain Tenements of C. D. with one and the same price and with the same Sum of Money and after doth Devise A. B's Tenements in these words viz. I do give and Devise A. B's Tenements as I bought them unto J. G. The Question is whether C. D's Tenements do also pass by that Devise It is Resolved in the Negative unless it doth appear by sufficient proofs that the Testators intention was to comprise the one under the Appellation of the other or unless the Testator used promiscuously to receive and place to Accompt the Rents of both in the name only of A. B's Tenements 30. If a man having two Dwelling-houses joyning together which have but one Kitchin or but one Stable in common to them both Devise one of these Houses the Kitchin and the Stable shall pass with that House they joyn nighest unto and through which the passage commonly is unto them
should Devise the. Immoveables only Indefinitely or design this Money only to be Let out at Interest There is a great quarrel among the DD. for this Engine of all mischief is of a very Metalsome quality whether Money actually out at Interest be within the notion of Moveables some affirm it others deny it comprising it under the notion of Debts which seems most rational But Money in Cash hath gain'd the more received opinion of its being comprehended within a Legacy of Moveables albeit it happen to be much in quantity or designed for a Purchase so as it be not for that end of a great quantity But in such Places where by common usage of Speech Houshold-goods are mainly and frequently meant or intended by the word Moveables or if it be such Money as was only designed by way of Trade for Merchandise the Testator being also a Merchant and the quantity be great or if the Testator bequeath all his Moveables in such a House excepting none at all In all such cases Money how acceptable soever it otherwise be yet is not admissable to any comprehension within a Legacy of Moveables Nor when any certain place is added to the Legacy as if the Testator should say I give my House to A. B. with all the things therein none excepted No Money found hid in the Wall of a House albeit the Testator should say be the Moveables of what kind or Condition soever 10. And as for Debts Bonds and Obligations for Money owing they are not within a Legacy of Moveables be the place where they are added or not added to the Legacy but make of themselves a third kind of Goods distinct from the former unless in such places where Custom prevails That Obligations touching things Moveable shall be computed among the Moveables and touching things Immoveable bequeathed among the Immoveables 11. If the Testator saith I give part of my Goods to A. B. he shall have the Moiety thereof for by saying a Part and not what Part the one half is regularly to be understood yea though the Testator himself had but the one half of the thing bequeathed yet the Legatary shall have a Moiety of that half and albeit the Testator should say a certain part But if he saith any part or what part soever then be it never so little the Legatary must therewith be content and the Executor is discharg'd 12. Lastly whatever was formerly said touching that Litigious subject of Money though by some formerly held as none of the Testators Goods or Chattels either Moveable or Immoveable yet now the Law understands Money better than to exclude it out of that notion and the opinion is now as Currant as Money it self That it is part of the Moveable Goods of the Deceased unless it be Money arising of the Sale of Lands Tenements Or Hereditaments appointed by the Testator in his last Will and Testament to be sold or Money comming of the Profits of the said Land for any time to be taken This Money is indeed by the Statutes of this Realm excluded from being reputed as any of the Goods or Chattels of the person so Deceased 13. Also by a Bequest of Moveables will pass the Industrial Fruits of the ground or such as are there sown by the Industry of Man in expectation of a speedy removal thence with increase But not the Natural Fruits or such as grow of their own accord without any great labour or cost for these are not reputed Moveables unless they were separated at the time of the Testators death Thus Trees and Grass together with the Land whereon they grow descend to the Heir as parcel of the Freehold But the Corn growing thereon belong to the Executor as part of the Testators Goods and Chattels 14. Where one bequeaths all his Goods and Chattels or all his Corn or all of any other thing by such bequest doth pass not only All the Testator hath of that thing at the time of making his Testament but also All he hath thereof at the time of his death And not only the All thereof which he hath in Possession but also what thereof he hath not in Possession but Expectation But if he limit this All to a certain place or as to or in the occupation of some certain person then no more will pass by such Bequest than what he hath in such Place or in the occupation of such a person at the time of making the Testament 15. And therefore a man may bequeath by Will not only those things which he hath at the time of making thereof but also such things as he is to have or may have afterwards Thence he may bequeath the Corn that shall grow in such Ground the next year after his death or the Wool or Lambs his Flook of Sheep shall yield the next year after his death But in case there shall be no such Corn Wool or Lambs the next year then the Legacy proves fruitless Yet if the Testator bequeaths 20 Quarters of Corn or 20 Lambs and doth Will that the same shall be paid out of the Corn that shall grow or out of his Flock the next year and there be no such Corn or not so many Lambs the next year yet the Devise is good and must be paid The Reason of the difference is because in the former Case there is such a Restriction and Limitation set to the Legacy as renders it questionable whether it might ever become due or payable In the latter there is only Demonstration how it shall be paid and nothing of any such Restriction as calls the Legacy it self into question In the former there is a tacite Condition in the latter the Legacy is Absolute CHAP. XXII Law-Cases touching Money Bequeathed by the Testator 1. IN the last precedent Chapter it hath been Examined how far Money may be comprised under the notion of Goods Moveable or Immoveable bequeathed It follows now that for the clearer illustration of this Desirable subject we insert certain Cases in the Law touching the same And because when Money is bequeathed it often happens that a more than ordinary power is given to or Latitude left in the Executor by the Testator It is requisite in the first place to see how far a Legacy of Money left to the will of an Executor is good or not which cannot well be Resolved without considering the several ways of disposal thereof as thus viz. 2. The Testator saith I would have 10 l. given to A. B. if my Executors mind were not against it In this case A. B. cannot have the 10 l. unless he can first obtain the Executors consent for it because a Legacy in that manner given is tacitely Conditional and first requires the Executors Approbation even by the Testators mind and intention for the performance thereof But if once the Executor gives his consent he must then pay the 10 l. and cannot
Daughter Whether may the Daughter compel C. D. to sell the Jewel and restore her the overplus It is held in the Negative But she may compel her Brother who is her Fathers Executor to Commence his Action at Law against C. D. in order to the Premises Or if the Testator say I will that C. D. receive 100 l. and restore the Jewel to my Daughter not expressing of whom he shall receive the 100 l. In that case the Executor is lyable for the 100 l. 11. Suppose a Testator in his Will saith Whoever shall be my Executor for the Goods and Chattels I have in Ireland shall give 10 l. to A. B. in Dublin the Testator makes three Executors for his said Estate in Ireland and dyes The Question is whether every of these Co-executors each of them having Administer'd to the said Irish Estate and each of them having a part thereof in his possession is obliged to pay 10 l. to A. B And whether that universal word in the Legacy whoever hath that force in it as to make each of them obliged in the case for 10 l. each It is Resolved A. B. shall have but 10 l. in all to be paid by from and among all the three Executors The Reason is Evident because they all make but one Representative being distinct rather in their persons than in their Office 12. A Testator having made A. B. and C. D. his Executors in his Will faith That either A. B. shall pay 10 l. to J. G. in lieu of a Legacy or C. D. alone shall be his Executor and dyes They both Administer In this case J. G. may sue both of them for the whole Legacy and C. D. is as far forth lyable to the payment thereof as A. B. 13. A Testator whose Wife is big with Child saith I will that if there be any Daughter born to me my Executor shall pay her 100 l. and dyes After the Wife is delivered of Twins viz. Two Daughters In this case the Executor shall pay 100 l. to each unless it appear the Testator intended the contrary In like manner if a man bequeaths 1000 l. to his Daughters without other words and dyes and his Wife after his death be within due time delivered of another Daughter that Posthume Daughter shall claim proportionably with the others in the 1000 l. if the Testator by his Will made no other provision for her 14. A Testator bequeaths in this manner viz. I give to A. B. 300 l. And I will that my Executors do pay 100 l. thereof out of the Arrears of Rent due to me out of such Lands naming them the other 200 l. out of such and such Goods to be sold after the Testator receives in his life time the said Arrears of Rent and Converts them to other uses and dyes without altering his Will In this case A. B. shall notwithstanding have the whole 300 l. The Reasons in Law are 1 Because it was no Condition but only a Demonstration that had relation to the Legacy bequeathed 2 Because a bare designation how or whence a Legacy may be paid set after a Legacy given makes it not Conditional 15. Suppose a Testator saith I bequeath some Money for the repairing of my Parish Church not expressing how much In this case the Legacy in favour of Pious uses is good though it be somewhat uncertain And his Executor shall expend so much Money as will suffice for the repairing thereof unless it require a vast Sum at least much too great for the Testators Estate conveniently to bear In which case it shall be presumed the Testator intended no more than his Estate would conveniently admit and the Ordinary in such case shall moderate the Sum with respect had to the Testators Estate 16. A man possessed of Goods and Chattels in England and Ireland makes his last Will and Testament and therein his Son a Minor his sole Executor and A. B. his Guardian and the Overseer of his said Will to whom he therein bequeaths 100 l. and dyes A. B. willing to have himself excused from the said Guardianship in part refuses it as to the Estate in Ireland In this case he shall lose the whole Legacy of 100 l. because the Law is That a Legatary refusing the Office or Duty imposed on him by the Will though but in part forfeits his Legacy in the whole 17. A Testator makes his last Will and Testament and therein appoints A. B. and C. D. his Executors after doth annex a Codicil to his Will and therein saith I will that A. B. one of my Executors shall give J. G. 10 l. when I shall have given him the said A. B. 100 l. And dyes without bequeathing him any such 100 l. The Questions are whether A. B. by reason of such words spoken by the Testator may have a right to that 100 l And whether he be obliged to pay 10 l. to J. G They are both answered in the Negative The reason in Law is because words meerly Enunciative relating to something that should be done in time past or to come without expressing the very thing it self signifie nothing as to a sufficient disposal of any thing which is not deduceable from any such bare Enunciations 18. If the Testator saith I give thee 100 l. when thou shalt Marry and thou art Married at that time when the Testator so made his Testament and demandest the 100 l. upon the Testators death In this case thou shalt have the 100 l. if the Testator at the giving thereof were ignorant of thy being then Married But if he then knew thereof thou shalt not have it till thou art Married a second time 19. If in two several and distinct Writings or Instruments bearing one and the same date the same last Will and Testament be found written verbatim save that in the one there is mention made of a lesser Legacy to one than there is to him in the other the lesser only is due As thus A. B. going beyond Sea makes his last Will and Testament the Tenor of which Will is exemplified or duplicated in two distinct Papers as if the one was only a Duplicate of the other only in the one of these is found a Legacy of 100 l. to C. D. But in the other a Legacy only of 50 l. to him whereof the Testator takes one with him to Sea the other he leaves at home behind him In this case C. D. ought not to have more than one of these Legacies and that the lesser also viz. That of the 50 l. only 20. A Testator being possessed of 800 l. value in Goods appoints A. B. and C. D. his Executors and bequeaths 400 l. to A. B. And after sayes whoever shall be my Executor shall pay 200 l. to J. G. and gives several other Legacies to the full value of his 800 l. Estate and dyes C. D. refuses the Executorship In this case A. B. is obliged
a Legacy whether it may be by an Administrator Durante Minoritate 67. § 3. Assets charging Executors p. 118 c. What Ibid. § 1. Whether Dammages recovered by Executors shall be Assets p. 119 120. § 2. Whether an Advowson be Assets p. 122. § 8. How reall Chattels may turn into Personall Assets p. 123. § 9. Goods in Ireland are Assets p. 125. § ult Goods fraudulently Conveyed though in a Strangers hand shall be Assets p. 126 127. § ult Mortgages redeemed by Executors are Assets p. 120. § 3. Encrease be Merchandizing with the Testators Goods are Assets Ibid § 4. Whether the Profits of Land Devised to be Sold be Assets p. 139. § 2. In what Sense Lands Devised to be Sold for payment of Debts or Legacies may be said to be Assets or not p. 121 122. § 6. The mean Profits of Land Devised to be Sold by Executors no Assets in their hands unless specially so appointed by the Testator p. 273. § 1. But the proceed of the Sale shall be Assets in them Ibid. § 4. Money decreed in Chancery to an Executor may be Assets p. 112. § ult And Dammages Recovered shall be Assets Ibid. Goods Distrained or Impounded are no Assets p. 111. Debts till Recovered or Released are no Assets p. 121. § 5. Goods of a Testator as Executor Indebted are not Assets lyable to his Debts in such Executors Executor p. 122. § 7. Goods retained by a Debtee-Executor no Assets as to Creditors p. 123. § 10. Other Mens Goods in the Testators possession no Assets in the Executors hands p. 123. § 11. The Testators Debts paid with the Executors own Money abate the Assets as to so much p. 112 113. § 12. Assumpsit Actions thereon by or against Executors p. 103 104. § ult p. 107. § 5. B. Bastards whether they may be Legataries p. 206 208. § 4. § ult Birds Bequeathed what passeth thereby p. 441. § 60. Bishop he may not Devise the Land belonging to his Bishoprick p. 225. § 3. A Devise given to a Bishop not naming him and he dying before the day of Payment comes the Legacy accrews to his Successors p. 448. § 105. Blind Men are nuncupatively Testable how otherwise Testable p. 19 20. Bona Notabilia what p. 43. § 1. The Law touching the same p. Ibid. to p. 46. Bona Paraphernalia what and to whom belonging p. 85. § 1. Bonds and Specialties Devised what it signifies p. 448. § 103. Books Devised others after bought what shall the Legatary have p. 447. § 96. Books of Account and Cash in the Chest pass not by a generall Devise of all a Man hath in such a place p. 302. § 5 By a certain Number of Books Bequeathed is intended so many Volumes not Computing severall Books in one Volume p 302. § 6. p. 442. § 62. Borough Tenure and by Custome Devisable pass by Will Nuncupative p. 5. § 3. p. 224. § 1. C. Captives actually such are Intestable p. 14 15. § 2. Cattell what is to be understood by a Bequest thereof and by that name 441. § 55. Cause which is false whether it viciates a Legacy p. 214. § 2. Chattels what the several kinds thereof p. 79 c. § 1. Reall Living and Moveable Ibid. § 2. Reall Inanimate and Immoveable Ibid. § 3. Personall Living and Immoveable Ibid. § 4. Personall Inanimate and Moveable Ibid. § 5. Chattels not Entailable Ibid. § 6. Chattels Reall and Personall what p. 301. § 2 Chattels Devised for an hour are Devised for ever p. 301. § 1. Several Cases in Law touching Devises of Reall Chattels p. 285 to 301. The like touching Personall Chattels p. 301 to 306. Chests Containing writings of Inheritance if lock'd do belong to the Heir unlock'd to the Executor p. 82. § 6. Child in the Womb may be appointed Executor p. 67. § 1. Also a Legatary or Devisee p. 208. § 3. p. 283. § 1. p. 315. § 13. The Devise is good though the Infant be ript alive out of the Womb. p. 284. § 2. Good though it be a Devise in Remainder or in Tail Ibid. § 3. How the Divident shall be in case of Twinns unexpected Ibid. § 4 5. And what the Law in case of Hermophroditality Ibid. § 4. What the Law in case a Legacy being given it prove a Monstrous Birth p 448 449. § 106. Child unborn at the Testators death may share in the Legacy with those in being when the Testator dyed p 447 § 99. A Child in the Womb made Collegatary with one out of it and after Born dead what proportion of the Legacy shall the living Child have p 448 § 101. Testaments made in favour of the Testators Children their Priviledges p 8 § 3. Cases of Legacies in Reference to the Children of Testators or others p 313 314 § 5 6. Circumstances not Restrictive nor joyned to the Legacy or Devise ought not to deteriorate the same 290 § 14. Codicil what p 9. It s Etymon and Definition Ibid. § 1 2. Codicils when how how many and by whom they may be made Ibid § 3 4. Co-executors how Constituted p 51 52. They must all be joyned in Suit p 108 § 6. In what Case they may Sue one another p 101 102 § 5. Their Indivisibility in point af Power Interest and Pleadings p 86 c. If anyone of them be a Debtor to the Testator it amounts to a Release p 75. § 2. Comminalty not Incorporate by the Kings Charter is incapable to take by a Devise p 206 § 2. Conditio what p 23 § 3. The several Marks and Kinds thereof p Ibid c. The Subject thereof very voluminous in Law Ibid § 1. Several Questions in Law touching Conditions Resolved p 26 § 4. Conditio Modus how they differ p 23 § 3 p 215 216 § 4 Condition in suspence how then to proceed p 28 29. Their several kinds and Resemblances incident to Legacies p 213 to 217. Whether a false Condition shall prejudice a Legacy p 215 § 3. Conditions may be implyed as well as expressed p 305 § 19. Implicite Conditions require Conditional Explications Ibid. Conditions Personall in the Legatary are not transferrable to his Executor p 443 444 § 76 77 Tacite Conditions in reference to the Executors Assent p 312 § 2 What words sufficient to express or imply a Condition p. 23. § 2. Condition to be annexed to a Devise of Lands not written in the Devisors life time makes void the whole Devise p 266 267 § 1. It cannot continue a Devised Estate for part and defeat it for the residue p 267 § 4. Being annexed to a Devise of Lands and broken the Heir not he in Remainder shall take advantage thereof p 268 § 6 8. Yet he may not enter where it is only a Limitation not a Condition p. 268 269 § 9. A Condition contrary to Law is void p 268 § 7. Devising may be a breach of the Condition of not Devising p 269 § 10.
Will only to Land and a Testament only to Chattels requiring Executors which a Will only for Land doth not require For it seems that by the Common Law where Lands or Tenements are only devised by writing albeit there be no Executor named yet that is properly called a Last Will and where it concerns only Chattels a Testament The truth is a Testament taken strictly according to the said definition differeth from a Last Will yet not as opposite thereto but only as the Special differeth from the General for every Testament is a Last Will but every Last Will is not a Testament In a word a Last Will is a general word and agrees with each several kind of Last Wills or Testaments But a Testament properly so called is only that kind of Last Will wherein an Executor is named or appointed Plowden in his Commentaries doth define a Testament to be the Witness of the mind and to be compounded of these two words viz. Testatio and Mentis But this is no adequate definition of a Testament neither is it a compound word but a single word such as is Calceamentum Paludamentum and the like And if it be demanded whether a Testament may be good in Law without a Seal it is Answered in the Affirmative for a Seal is not absolutely necessary to a Testament though it may be fit and expedient For a Will not being properly and legally a Deed may be good enough without a Seal which is one essential part of a Deed yet hath a Will the force and effect of a Deed. CHAP. II. Of the several Distinctions or kinds of Testaments A Testament is either Solemn or Vnsolemn This though the first and greatest distinction of Testaments yet of least force or use with us now in England 2. Testaments are either written or Nuncupative 3. They are either priviledged or unpriviledged Of Priviledged Testaments there are three sorts whereof some are called Militarie Testaments others are called Testaments only among the Testators own Children and others are Testaments to Charitable and Pious uses But if no Executor be named or appointed then it hath not the name of a Testament yet it shall retain the name of a Last Will and comprehends one of these three viz. either a Codicil or a Legacy and Devise or a Gift in regard or by reason of death CHAP. III. Of Testaments Solemn and Vnsolemn IN Solemn Testaments are comprehended the Solemnities of the Civil Law as the presence of seven Witnesses their subscription or subsignation the making or expediting the act of the Will it self at one and the same time with divers other Solemnities necessarily required by the Civil Law as Essential to a Testament whereof we have no use here in England being not obliged to such Ceremonies In Vnsolemn Testaments the said Ceremonies are omitted and such are our Testaments here in England wherein we are no further obliged than to the observation of such Requisites as are necessary Jure Gentium which requires but two Witnesses And saving in a Devise of Land wherein Writing is also necessary and that it be made in the Testators life time The Testator if he please may make use of more than two witnesses and procure their subscription yea for prevention of Forgery to every page of the Testament but no obligation hereto CHAP. IV. Of Testaments Written and Nuncupative 1. Testament Written what 2. Difference between Devise of Lands and Bequest of Goods 3. Lands of Burgage tenure and by Custome deviseable may pass Nuncupatively 4. Naming Executor not necessary in a Will only for devise of Lands 5. Notes taken in writing-sufficient for devise of Lands 6. Testament Nuncupative what 7. The Will whether Nuncupative or Written in case the Executors Name be omitted out of the writing 8. Law Cases relating to this subject § 1. A Written Testament is such as at the time of making thereof is committed to writing By which words are excluded such Testaments as are afterwards put into writing For being first made by word of mouth they still remain Nuncupative notwithstanding the reducing thereof into writing after the Testators death Among other advantages that a Testator hath by a written Will this is one that he may conceal the Contents thereof from the Witnesses which in a Nuncupative Will he cannot do And it is sufficient if taking his Will in his hand he say unto the Witnesses This is my Last Will and Testament or herein is contained my Last Will or other words to the like effect 2. As touching the disposition of Land of Inheritance by Will if it be not fully written before the Testators death so far at least as concerns the disposition of the said Land it may not be for that part made good by reducing it to writing after the Testators death but as touching Goods and Chattels it may Nevertheless if it be written before the Testators death though it be never brought nor read to him after the writing thereof yet is it good enough and that not only for Land but also for Goods and Chattels provided that there be an Executor named And this shall be a Will in writing and not verbal only yea though it want the subscription of the Testators Name For many cannot write at all and some want hands Nor is the subscribing the name of the Maker any essential part of a Deed much less of a Will which needs not sealing as a Deed doth 3. Lands and Tenements deviseable by Custome may pass by a Nuncupative Will for any time whatsoever for in a Devise of Lands Tenements and Hereditaments held in Burgage-tenure it is not necessary that the same should be written because such may pass sufficiently by Will Nuncupative because such Lands were deviseable before the making of the Statute of H. 8. enabling to devise Lands Tenements and Hereditaments by Will in writing in the Testators life-time which cannot pass by a Nuncupative Testament or Will without writing So that Lands of Burgage-tenure and by Custome deviseable may pass Nuncupatively though Lands of other tenures are not deviseable but by Will in writing 4. Though the naming or appointing of an Executor be essential to constitute a Testament or Last Will yet this properly refers only as to Goods and Chattels for a man may by his Last Will in writing devise his Lands Tenements and Hereditaments though he make no Executors because an Executor hath nothing to do with the freehold of Land 5. If the Writer doth only take Notes from the mouth of the Testator of his Last Will for the devise of Lands Tenements and Hereditaments and afterwards write the same but the Testator dies before it be shewed unto him yet this is sufficient for a Will in writing for the coveying of Lands Tenements and Hereditaments Likewise it is sufficient if Notes or Articles be made and read to
the C. B. and Tanfield Chief Baron That if one make his Will in writing and then sayes I will alter it or add to it that is not his Will because it is not compleat or finish'd nor publish'd for his Will but is deferr'd or delayed till the Alteration or Addition be made to it And if the party die before such Alteration or Addition and without publishing it to be his Will that Will is not his Will But if he make his Will and publish it and after it come to his mind to alter or add to it and he say that he will alter it or add to it but dies before he make any Alteration or Addition then the former shall be his Will CHAP. XVIII Of Testamentary Revocations 1. The several kinds of Revocations 2. Revocations by Marriage 3. Where two Wills are found and it be not known which was made First or Last which shall be presumed the Latter Will 4. In what cases the former Will stands unrevoked notwithstanding the making of a Latter Will 5. Cases in Law touching Revocations 1. REvocations may be either of Executorship or of Legacies and that either in whole or in part and this may be either by Word or by Deed or by Act and Operation of Law or by Marriage The Testator at any time before his death hath power to revoke or alter his Will at his pleasure And as a Will may be made by word only so even a written Will may by word alone be revoked and annulled For by making a Nuncupative or Verbal Will one may revoke a written Will yea one may by word only express the alteration of his mind thus far That the Will by him formerly made shall not stand but be revoked and annulled and this shall stand and be effectual So that if he then die without making a new Will or new publication or re-affirmance of the former he dieth intestate But a Will advisedly made shall not be nullified by doubtful speeches of the Testator without clear and perspicuous Revocation or words which tant amount Nor can there be a Revocation of Legacies among Children without precise mentioning the first Will and the Legacies thereby given to the Children The Law is the same when the Testator having no Children deviseth Legacies to his Brothers And as a Will may be wholly revoked so also in part only Also the Executorship of one or more of the Executors may wholly or in part be revoked and yet the Will may stand good in all the other parts so as there be any one or more Executors left unrevoked but if all the Executors be revoked then the whole Will is revoked And this revocation as aforesaid may be by word only without being expressed in the Will or any other writing Likewise Revocations may be by Act and operation of Law as well as by Fact or by any direct and express terms as thus when the Testator maketh a Feoffment to one man of the same Land by Deed which he had formerly devised or bequeathed to another by Will Also if one bequeath his black horse by Will yet afterwards selleth or giveth him away and buyeth another black one this latter black horse shall not pass by the Will because the Testator had him not at the time of making the Will as also because such his sale or gift of the former black horse was an actual revocation of his Bequest or Legacy thereof The like of Corn in the Barn or other thing whereof the Testator makes any Act of Alienation contrary to the disposition thereof in his Will Lastly although a Testator may by word revoke a Will made in writing that is good yet he cannot by word affirm a Will made in writing that in it self is void 2. There are likewise Revocations by Marriage as thus If a Woman Sole make a Will and afterwards take a Husband this without any more shall work a Revocation or Annullation But in case the Husband be Bound or Covenanted to make good or perform the Womans Will which if he afterwards refuse to do his Bond or Covenant stands good against him and is also Suable Yet a married Woman cannot by word countermand and revoke her Will formerly made when she was Sole and unmarried by reason of the Coverture taking away the freedom of her Will And if the Husband doth give his Wife Licence to make a Will of his Goods yet he may revoke the same not only at the making of the Will but also after her decease at least before the Will be Proved 3. No man can properly be said to die with two Testaments except a Field-Souldier in actual Service yet a man may make two Testaments and both stand good and both be proved provided they be of and as touching distinct and several things and the Executors thereof limited accordingly and the one no way derogatory to the other But of the same things there can be but one Will for the Last rescinds all former Wills Yet a man may die with divers Codicils and the latter doth not infringe the former so long as they be not contrary the one to the other But if two Testaments be found and it appear not which was the latter both are Null and Void yet if one of them be made inter Liberos or ad Pios Vsus that shall be presumed to be the latter and so take place yea or if one of them be made in favour of such as ought to have had the Administration in case of intestation But if one of them be in favour of the Testators Children or of them that ought to have had the Administration and the other be ad pios usus In this case if they that should have had the Administration be the Testators Children then that shall take place yet that ad pios usus shall have priority of a Testament of the same date made in favour only of collateral Kindred But if two Codicils be found not appearing which was made First or Last and one and the same thing be given to one person in one Codicil and to another person in the other Codicil in this Case the Codicils are not void but the persons therein made Legataries ought to divide the bequest equally betwixt them 4. The former Will shall stand good and unrevoked notwithstanding a later Will in case the later Will be voidable by any wayes or means whereby Wills become void and the former be without any such just exception or in case it be justly suspected that the Testator was circumvented by fraud or compelled by violence to make that later Testament Or in case in the former Will there be inserted a clause derogatory of not making any other Testament and sufficient mention or express revocation thereof be omitted in the later For if in the former Testament there be a clause derogatory
of Wills and Testaments afterwards to be made as if the Testator sayes Whatsoever Testament I shall hereafter make I will the same to be void and of no force In this case it is not infringed by a later Testament unless in that later there be mention thereof sufficiently made to amount unto a legal revocation of that former Testament or clause derogatory 5. If a man saith that he will revoke his Will hereafter which he hath made that is not any revocation without the doing of some other Act. Likewise if one saith that he will make a Feoffment thereof to another that is no revocation before it be done But if a man Devise Land to another by his Will in writing and after Devise it unto another per paroll albeit that is void as a Will yet it is a revocation of the former Will If a Devisor alien the Land Devised and afterwards repurchase the same Land yet the Will is revoked as to that Land 44 Ed. 3. 33. 44. Ass D. 3 4 P. M. 143. 55. Contra. 2 R. 3. 3. b. Trespass upon evidence where one hath made his Will in writing and devised his Land to A. and her heirs and afterwards being sick and lying upon his death-bed because A. did not come to visit him affirmed that A. should not have any part of his Lands or Goods It was held by all the Court that it was not any revocation of his Will being but by way of discourse and not mentioning his Will But the revocation ought to be by express words that he did revoke his Will and that she should not have his Lands given unto her by his Will or such like words which might shew his intent to make an express revocation thereof Ejectione Firmae Upon evidence to a Jury it was resolved by the Court and so delivered to the Jury that if one makes his Will in writing of Land and afterwards upon Communication saith That he hath made his Will but it shall not stand or I will alter my Will c. These words are not any revocation of the Will for they are words but in futuro and a declaration what he intends to do but if he saith I do revoke it and bear witness thereof he doth hereby absolutely declare his purpose to revoke it in praesenti and it is then a revocation Also Mountague said to the Jury and it was not denied by any other of the Justices That as one ought to be of a good and sane memorie at the disposing so ought he to be of as good and sane memory when he revokes it And as he ought to make a Will by his own Directions and not by Questions so ought he to revoke it of himself and not by Questions CHAP. XIX Of a Reviver of a Will Revoked 1. How a Will Revoked may be Revived 2. How an Executor Revoked may be Revived 3. How one may dye both Testate and Intestate 1. OF a Will Revoked there may be a Reviver by a new publication of that revoked Will also a Will revoked may without making a New Will be revived and set on foot again by annexing a Codicil thereunto or by adding any thing to the Will or by making a new Executor or by express speech and word that it shall stand good and be his Will yea and sometimes without either of these as thus A man makes his Will many years after he makes another then in his sickness both these Wills are put into his hands and being demanded which of these Two he will have to stand for his Last Will and Testament and being required to deliver back that which he will have to stand and to detain the other in his hands he delivers back the Will he first made possibly many years before the later In this case the former Will though once made void by the later is now revived again and shall stand as the parties Last Will and Testament 2. If one of the Executors Names be stricken out of the Will and afterwards a stet be written over it by the Testator or by his appointment he is then a revived Executor but then Note that if the stet shall stand good the Executors Name over which it is written ought not to be so blotted out but that it may be read and discerned otherwise the stet is over nothing at all Or if the Testator express by word in the presence of witnesses that the party put out shall yet be Executor he is then also a revived Executor Lastly if the verbal re-affirmance renew the Executorship then is the Will partly in Writing partly Nuncupative his Name not being to be found in the written Will for the appointing of the Executor doth create the Will though it hath not life till the Testators death which is Divinity as well as Law 3. If a man seized of Lands in Fee-simple dispose of the same or part thereof by his Will in writing it shall stand good for the whole or part according to the difference of Tenure though no Executor be named or appointed so that the party shall die Intestate as touching his Goods whereof Administration is to be committed yet shall have a Will as touching his Lands because Land is not properly Testamentary And so a Will may be good in part only But where the strictness of the Civil Law is observed there a man cannot die partly Testate and partly Intestate though here in England where that Ceremonial strictness is not observed but all immunities enjoyed being not obliged to any other observance in making of Testaments than what is Juris Gentium a man may thus and several other wayes die partly Testate and partly Intestate CHAP. XX. Of the Probate of Testaments 1. Where and before whom the Will is to be proved 2. By whom and at whose instance the Will is to be proved 3. When is the Will to be proved 4. How and in what manner is a Will to be proved 5. What are the Fees upon Probate of a Testament 6. Touching refusal to prove the Will 1. EVery Last Will and Testament after the Testators death ought to be duly Proved before a Competent Judge in the Ecclesiastical Jurisdiction A Testament or Last Will is to be Proved before the Bishop of that Diocess within which the Testator had his Domicil or Habitation or before his Official unless by Custome or Prescription within certain Lordships or Mannors it appertains to the Chief Lord or unless the Testator died within some peculiar Jurisdiction in which case the Probation of the Testament may be Prescription or Composition belong to the Judge of the peculiar or unless the Testament be such as wherein only Lands Tenements and Hereditaments and no Goods be devised or unless the Testator had Bona Notabilia at his death in divers Diocesses in which Case the Probation of the Testament appertains to that Arch-Bishop within whose
Province such Bona Notabilia are Or unless by Custome it appertains to the Major of some Borough for ordinarily and regularly though Wills and Testaments are to be Proved before the Judge of that Jurisdiction within which the Testator died or rather within which he had his usual habitation and made his last aboad yet some Testaments may be Proved in some Boroughs before the Major thereof by Custome where it shall be understood to be only in respect of the Burgages within such places deviseable but in respect of their Goods they shall be Proved according to the Law Communi Formā and there only where the Lands are bequeathed which is nothing strange when as aforesaid in some Mannors by Prescription Testaments may be Proved before the Stewards thereof yea though no Lands be bequeathed therein The Probate of Testaments did belong to Ordinaries but of later Times de Consuetudine Angliae non de Communi Jure and the power to grant Administration was granted to the Ordinary by the Stat. of 31 Ed. 3. cap. 11. And before that time the King was accustomed to seize the Goods of the Intestate to the intent they might be bestowed for the burial of the dead and the payment of the Intestates Debts and the advancement of his Wife and Children and the Ordinary himself hath not power to sell the Goods of the Intestate though they be in danger of perishing nor release a Debt due to the Intestate by the Stat. of 31 Ed. 3. The Commissary of the Bishop of the Diocess granted Letters ad colligendum ad vendendum ea quae peritura essent inde computum reddere the Grantee sold Goods which would not keep but perished and an action of Debt was brought against him as Executor in his own wrong and it was adjudged maintainable because the Ordinary himself had not such power and therefore he could not give it to another 7 Eliz. Dyer 256. Again the practice hath been when Testaments have been Proved before other than such as are mentioned in the Premises as appears by this Case A Testament is disproved in the Ecclesiastical Court and the party appeals to the Metropolitan and it is there disproved and afterwards there is an Appeal to the Court of Delegates and it is there disproved also and at last the party appealed to the Queen in Chancery by the Stat. 25 H. 8. and there also it was disproved before the Commissioners And if the Queen ex Authoritate sua Regali might grant Letters of Administration was the Question The Opinion of the Justices of the Common Pleas was That she might because the said Court of Chancery is the Highest Court and the matter being once there it cannot be determined in any Inferiour Court and then the party may shew in his Declaration generally the matter and that Administration was granted to him by the Queen Ex sua Regali Authoritate under the Seal of the Court of Delegates Mich. 24 Eliz. in C. B. See after 10 Jae in B. R. Stephenson's Contrary That the Court of Delegates cannot grant Letters of Administration A Lessee for years of Lands by his Last Will Devised his Term to one whom he made his Executor and died the Devisee entered before any Probate of the Will and held the Land for a year and more without any Probate and then died The Question was whether his Executor or Administrator should have the Term or that the Ordinary should commit Administration of the Goods of the first Testator It was the Opinion of the Court That the property of the Term was lawfully in the Executor by his Entry and the Devise well executed without any Probate In Debt against Executors it was Resolved That if any of the Exccutors refuse before the Ordinary yet he that refused may Administer the Testators Goods at his pleasure and Prove the Will but if all the Exccutors do refuse before the Ordinary there Administration shall be granted and they cannot after Administer 2. That in Debt brought against an Executor it is a good Plea That the Testator made him and another Executor who is alive not named without saying that the Testament is Proved 3. Resolved That the Lords of Mannors in former times had the Probate of Wills in their Courts and in ancient time when a man died Intestate and had made no disposition of his Goods the trust of them was committed to the King who was and is Parens Patriae And the Ordinary was Constituted by the King in loco Parentis and his Power was given to him by the Stat. of 31 E. 3. cap. 11. 4. Resolved that although the Ordinary had the Power given to him as before yet no Power thereby is given to the Ordinary to sell or dispose of the Goods either to his own use or to the use of any other and that he hath not any absolute property in the Goods but a property only secundum quid 2. The Testament is to be Proved by the Executor whom the competent Judge either ex Officio or at the instance of the interessed may call before him to Prove the same and to declare his acceptance or refusal of the Execution thereof yea some think it may be done at the instance of such as have no interest to the intent that thereby they may be certified whether the Testator left them a Legacy And because it often happens that a Last Will or Testament is left in the Custody of some other Friend than the Executor the Law hath provided that in whose hands soever it remains he is compellable to produce the same and to exhibite such Testament And if he once had it the Law presumes him to have it still untill he prove the contrary by good evidence or by his own oath at least Also an Executor dying before he hath Proved his Testators Will his Executor that is the Executors Executor may not Prove both the Wills and so become Executor to both the Testators but in case the Goods of the first Testator were after Debts paid bequeathed to the first Executor then may his Executor take Administration of the first Testators Goods with the Will annexed 3. The time when the Will is to be Proved is somewhat uncertain and left to the discretion of the Judge according to the distance of the place the weight of the Will the quality of the Executors the absence of the Witnesses the importunity of Creditors and Legataries and other circumstances incident hereunto Yet regularly Testaments ought to be insinuated to the Official or Commissary of the Bishop of the Diocess within four months next after the Testators death And the Ordinary may sequester the Goods of the deceased untill the Executors have Proved the Testament so may the Metropolitan if the Goods be in divers Diocesses Also the Ordinary may compell the Executor to Prove the Will and to accept or refuse
died to the full value of five pounds besides those Goods extant in the County where he died So that although the deceased's Goods and Chattels do amount to Ten Pounds or more yet if the Goods and Chattels extant in some other County do not extend to Five Pounds at the least the deceased is not to be accounted to have Bona Notabilia 2. Regularly the Will is as hath been said to be Proved in the Ecclesiastical Court of the same County where the Testator is an Inhabitant or wherein he made his most usual residence and aboad for the latter years before his death and not in the Ecclesiastical Court of that County wherein he made his Will or wherein he died but where his last place of habitation was but if the Testator died possessed of Goods to the value of Five Pounds called Bona Notabilia in divers Counties then the Will is to be Proved in the Prerogative Court to which also Appeals from any other inferiour Jurisdiction So that the Prerogative Court of the Arch-Bishop of Canterbury is the Court wherein all Testaments are to be Proved and all Administrations to be granted where the party dying within his Province hath Bona Notabilia in some other Diocess than that wherein he died which regularly is to be to the value of Five Pounds save where by custome or composition it is at any greater summ as aforesaid Also if any Testator die not possessed as aforesaid and the Executor notwithstanding Prove the Will in the Prerogative such Probate shall stand good But it is otherwise if the Will be Proved in the Inferiour Jurisdiction when the Testator dies possessed as aforesaid of Bona Notabilia for in such case it is again to be Proved in the Prerogative And if a man hath Goods in divers Diocesses or Provinces and make his Executor of his Goods in one of the Provinces and die Intestate as to his other Goods And if the Ordinary do commit Administration of the Goods which are in the other Province unto the said Executor then is he both Executor and Administrator and the party died both Testate and Intestate And if a man died Intestate having Bona Notabilia in divers Diocesses the Judge used to Assess a convenient summ to be imployed in pios usus but with and under certain limitations or legal restrictions 3. Debts owing to the Testator are held Bona Notabilia as well as Goods in possession their value being answerable yet if the penal summ of a Bond be but Five Pounds for the payment of a less summ although the Bond be forfeited yet that is not understood as Bona Notabilia although in Law the whole penal summ be a Duty And those Debts are said to be Bona Notabilia where the Bonds or other Specialties are and not where the Debtors inhabit so that if the Bonds be in the County where the Testator died and the Debtors in another County in this case the Will is not to be Proved in the Prerogative Court but in case the Debts are only by Contract without Specialty they are then to be esteemed Bona Notabilia there and in that place where the Debtor is But in case Lands be by Will given to be Sold for payment of Debts and Legacies this is not to be accounted as Bona Notabilia though it be Assets for where Land is bequeathed to be sold for such uses there neither the money raised thereby nor the profits thereof shall be accounted as any of the Testators Goods or Chattels 4. One had Goods solely in an Inferiour Diocess and the Metropolitan of the Province pretending that he had Bona Notabilia in divers Diocesses committed the Administration of the Goods It was resolved that such Administration granted by the Metropolitan was not void but voidable by Sentence because the Metropolitan hath Jurisdiction of all places within his Province But if the Ordinary of one Diocess committeth Administration of Goods when the party hath Bona Notabilia in divers Diocesses the Administration is void as well for his Goods within the Diocess as without In an Action of Debt brought by an Administratrix upon an Administration brought by the Bishop of R. the Defendant pleaded an Administration committed to him by the Dean and Chapter of Canterbury sede vacante because the Intestate had Bona Notabilia The Plaintiff Replyed that the said Administration was Repealed and it was adjudged for the Plaintiff 1. Because the Defendant did not shew what Bona Notabilia the Intestate had in certain and it shall be intended he had not Bona Notabilia and such Administration is but voidable 2. Because before the Repeal of the Administration committed by the Metropolitan the Inferiour Ordinary may commit Administration and when the Defendants Administration is Repealed it is void ab initio and in the Principal Case it was also resolved that whereas the Administration was committed to the Obligor that the Debt was not extinct because it is in another right otherwise it is if the Obligee himself made the Obligor his Executor In Debt brought upon an Obligation the Case was the Intestate died in Lancashire The Obligation upon which the Action was brought was in London at the time of his death The Bishop of Chester in whose Diocess the Intestate died grants Administration to J. S. who released to the Defendant The Arch-Bishop of Canterbury granted Letters of Administration to the Plaintiff and in Debt brought by him the Release was pleaded in Bar. In this Case it was holden by the Justices where one dieth who hath Goods in divers Diocesses Canterbury shall have the Prerogative and it was holden that if Canterbury hath not any Prerogative in York yet that this Bond ought to be Sued in and committed Administration of within the Court of Canterbury and committed by the Bishop of that Diocess If a man dies Intestate having Goods in divers Counties the Metropolitan shall grant the Administration 14 H. 6. 21. 10 H. 7. 18. 35 H. 6. 43. If he hath Bona Notabilia to the value of one hundred shillings in divers Diocesses the Metropolitan shall grant the Administration 10 H. 7. 16. b. Or if a man dies beyond the Seas Intestate the Arch-Bishop shall grant the Administration P. 11 Jac. B. per Co. to be adjudged in 42 Eliz. If a man dies Intestate having Bona Notabilia in England and Ireland several Administrations shall be granted viz. by the Arch-Bishop of Canterbury for the Goods in his Province and by the Arch-Bishop of Dublin for the Goods in his It is Ordained by a Canon 1 Jac. cap. 92. That if a man dies in a Journey the Goods which he had at that time with him shall not cause his Testament or Administration to be liable to the Prerogative Court If a man hath Goods to the value of Five Pound in one Diocess and a Lease for years of the same value in another Diocess they are Bona
of time 3. A threefold qualification of an Executors Power 1. TEstaments wherein the Executor is pure and simply made are such as wherein the Testator maketh his Executor without any condition at all but when the assignation or nomination of the Executor hath some such quality added to it or joyned with it as whereby the effect of the disposition is suspended and depends upon some future event then is such assignation said to be Conditional Also the condition in creating or appointing an Executor may be either precedent or subsequent yea and sometimes it may be conditionally that he give security to pay the Legacies and in general to perform the Will before he Act as Executor The conditions incident to the appointing of Executors are very numerous and uncertain according to the pleasure of the Testator so as they be neither necessary nor impossible nor unlawful nor captious Conditions 2. The time may be limited when the Executorship shall begin and that either certainly or with reference to Contingency for by the Laws of the Land it is lawfull for a Testator to appoint his Executor either from a certain time or until a certain time and in the mean time Administration may be committed to the next of Kin or to the Widow and the Acts then done by such Administrator cannot be voided by the Executor afterwards and in this sence the same person may be said to die partly Testate and partly Intestate which by the strictness of the Civil Law is not allowable 3. As the Conditions incident to the making of Executors and giving of Legacies are as aforesaid very many and full of variety so also the power it self of Executors may be limited qualified and divided specially these Three wayes viz. First Really as thus he may make A. his Executor for his Plate and Householdstuff B. his Executor for his Sheep and Cattel C. his Executor for his Leases and States by extent and D. his Executor for the Debts due to him Secondly Locally as thus viz. he may make E. his Executor for his Goods in Cornwall F. his Executor for his Goods in Devon and G. his Executor for his Goods in Somerset Thirdly Temporally as thus he may make his Wife his Executrix during her Widow-hood or during his Sons minority CHAP. III. Of appointing Co-Executors 1. How one alone or many joyntly may be made Executors 2. How Executors may be made universally or particularly 1. ONe person alone or divers together so the number be not too numerous may be appointed Executors And where divers persons be made Executors all are to be admitted and not one without the rest unless they cannot or will not undertake the Executorship Which conclusion holds true though he be a stranger who is joyned in the Executorship with the Testators own Son it is true also whether the Executorship be appointed alternatively or disjunctively in which case if the Testator say I make A. B. or C. D. my Executors both persons are Admissable For this word or in favour of Testaments is taken for and unless it be most evident that the Testator did bear much more affection to the one than to the other or unless the Authority of Election of the person be by the Testator granted unto another or unless one of the persons be incapable of the Executorship And here note that where there be divers Executors the Action commenced by them or against them ought to be commenced in all their names and not in the name of some of them only without the rest 2. Likewise an Executor may be appointed either universally or particularly Vniversally when he is made Executor of the whole Will or of all the Testators Goods or indefinitely and such Executor may enter into all the Testators Goods in which respect he is universally chargeable with the payment of all his Debts and Legacies so far as the same Goods extend Also an Executor may be appointed Particularly that is of some part of the Will or only of some part of the Testators Goods in which respect such Executor may meddle with no more than is allotted to him and so not chargeable but according to his portion And if there be no other Executor appointed such particular Executor cannot meddle with the residue of the Goods for of them the Testator by the Laws of this Land is said to die Intestate And thus in this case also may the same person die both Testate and Intestate not only in respect of time as aforesaid but also in respect of place and Goods contrary as was before declared to the strictness of the Civil Law In the same sence also one may be made universal or particular Legatary And where the Testator leaves all his Goods or the residue of them to some person none else being appointed Executor that person in Law seems to be appointed Executor thereof at least admissable to the Administration CHAP. IV. Of Substitutions and appointing Executors by degrees THe Testator is then said to make degrees of Executors when he doth substitute one in place of another For an Executor may be made either in the first second third fourth or fifth degree c. And he that is made Executor in the first degree is said to be instituted the rest are said to be substituted As thus The Testator maketh A. his Executor but if he will not or cannot be his Executor then he maketh B. his Executor and if B. cannot or will not be his Executor then he maketh C. his Executor and so on In which example there be Three degrees of Executors A. is said to be instituted Executor in the first degree B. is said to be substituted Executor in the second degree and C. is said to be substituted in the third degree And so it is lawful for a Testator to make as many degrees of Executors as he pleases and in the place of one only Executor he may if he please substitute more than one Also it is lawful for the Testator to institute an Executor simply and to substitute another in his place conditionally or to institute one conditionally and to substitute another simply And so long as he that is appointed Executor in the first degree may be Executor he in the second degree may not be admitted Likewise by the second degree the third is repelled and by the third the fourth c. Also if but any one of the Executors in the first degree may be admitted the Substitute is excluded unless the Testator doth appoint to every Executor first instituted his several Substitute respectively Also the Substitute ought to succeed in that part or quantity of the Testators Goods which was assigned to the former Executor CHAP. V. Of the several wayes of Constituting Executors 1. The bare nomination of an Executor is the Creation of a Will 2.
as 8 El. 4. 3. And Nichols Justice said That a Personal Action once suspended by the act of the party as here by the act of the Obligee in making the Wife of one of the Obligors his Executrix shall be Extinct for ever otherwise if by the act of Law And it seemed to the Court That by the last clause of the Devise of all his Goods to the Wife after his Debts and Legacies paid the Obligation passed to the Wife And inasmuch as that the duty and debt thereof is a thing in action which by our Law cannot be transferred by a Devise yet it shall enure as a Declaration of the intent of the Obligor that the debt is extinct and the Civil Law allows a Devise of debts due to the Testator to be good And it is averred in the Principal Case That the Debts and Legacies are all paid whereupon Judgement was given Quòd quaerens nihil capiat c. The suggestion was That whereas one was in debt to J. S. in Thirty pound who after by deed of Gift in his life-time conveyed all his Goods and Chattels to A. and after made the Plaintiff and B. his Executors and devised that the Plaintiff should pay out of the Thirty pound which he owed him Ten pound to the Defendant for a Legacy who brought the Plaintiff into the Ecclesiastical Court for the same where by the Law the Thirty pound debt is extinct by making the Plaintiff Executor and shewed that he had Proved the Will c. And per Curiam the Defendant shall have a Consultation forasmuch as the joynt-Executor hath no remedy to recover the Thirty pound against the Plaintiff his Co-Executor nor can have any Action for the same during the Plaintiffs life yet the debt not extinct but remains as Assets to any other Creditor as is 8 E. 4. And by the same reason that one debt shall satisfie another debt it shall satisfie a Legacy also and much the rather in regard the express intent of the Testator was to that purpose having precisely limited the Legacy to be paid out of the debt Quod not a per totam Curiam And Consultation was granted accordingly Yelv. Council for the Plaintiff CHAP. XII The general difference between an Executor and an Administrator and wherein they generally agree THey differ thus viz. An Executor is made either by the Testator or by his own Acts but an Administrator is appointed only by the Judge An Executor may appoint an Executor to the first Testator so cannot an Administrator yet a bare and meer Executor or a naked Executor to whom nothing is bequeathed in the Will made choice of meerly for his care and not at all for his profit cannot bequeath the Testators Goods in his Will by Legacies no more than an Administrator for these Goods are to be imployed only for the behoof of the Testator in which respect such Executor is accountable as well as an Administrator But of the Profits and Fruits which happen and arise of those Goods which belong to any as Executor he may make his Testament though not of the Goods themselves and so also in some cases may an Administrator They agree thus viz. An Administrator is entitled to all the Goods and Chattels of the Intestate as well as an Executor to all the Goods and Chattels that belonged to the Testator they are both alike liable to the payment of Debts and Legacies and they are both accountable These are the most general things wherein they differ and agree Their more particular agreements and disagreements are very many according to their distinct Beings Interests and Offices For which reason the Reader for his fuller satisfaction in this point is referred to his own Observations from the Contents of the several Chapters of this Testamentary Treatise CHAP. XIII Of the Executors Rights exclusively to the Heirs 1. The several divisions and distinctions of such things as come to the Executor and what Chattels are 2. Of such Chattels real living and moveable as accrew to the Executor 3. Of such Chattels real without life and immoveable as go to the Executor 4. Of Chattels personal living and moveable belonging to the Executor 5. Of Chattels personal without life and moveable pertaining to the Executor 6. Several Laws in reference to this subject 1. ALL things that come unto an Executor may be divided into things possessory and actually in the Testator or into things only in action and not actually in him and the things possessory may be divided into Chattels real and immoveable or into Chattels personal and moveable Again the possessory Chattels real may be divided into things living or into things without life Also the personal Chattels or Goods moveable may be divided into things living or things inanimate and without life There are also comprehensive of some of these Chattels principal and Chattels accessory that follow the principal So that Chattels are all possessions of Goods moveable and unmoveable except such as are in the nature of a Free-hold or parcel of it And they are called real or immoveable either because they are such in their own nature or because they appertain to something real by way of dependance as a Box with writings of Land the body of a Ward the fruit of a Tree or the Tree it self upon the Land or because they issue out of things immoveable and of a more real nature as Leases for years at Will Wardships Tenants Estates by Statute Merchant Staple or Elegit and Grants of the next Advowson 2. The Chattels Real Living and Moveable which did accrew to the Executor were such as these viz. Wardship being a real Chattel in respect of a Tenure of Land whereby was intended such Wardship as was by Knights Service and not such as is by Socage Tenure also a Villain for years as by Grant for a Term from him that had the Inheritance 3. The Chattels Real without Life and Immoveable that go to the Executors are generally and for the most part in Houses or Lands by Lease or extent upon Judgements Statutes or Recognizances or in things issuing out of Houses or Lands as Rents Commons and the like as arrerages of Rent behind at the Testators death also Advowsons Tithes Fairs Markets Profits of Leets and the like which the Testator had only for years Also the Title accrewed to the Crown upon Attainder of Felony where the party held not of the King viz. the Annum Diem Vastum that is power not only to take the Profits for a year but also to wast and demolish c. is but a Chattel And therefore though granted to one and his Heirs by the King yet shall go to the Executor not to the Heir Also a Lease for years determinable upon lives which is a Chattel and shall go to the Executor As also doth an Extent upon a Statute Likewise if a Termer for years grant his Term by Bequest or otherwise to A. and his Heirs
Executor but as Legatee 3. Where there are divers Executors they are all but as one person and therefore cannot plead several pleas being sued all of them represent the Testators person and they must all joyn in Suits as Plaintiffs and be joyned as Defendants or at least so many of them as have Administred therefore one Executor sued if he plead that there is another Executor not sued must also plead that that other hath Administred Thus Executors though never so many represent the person of the Testator as one person Therefore all of them shall have but one Essoyn neither before appearance nor after because their Testator himself whose person they represent could have no more And therefore where Executors as Defendants have appeared if any one of them will confess the Action this binds and concludes the rest but if one will plead one Plea and the other another some are of Opinion that that shall be received which is best for the Testators Estate So where they Sue such as will not prosecute shall be severed and the rest without them may proceed It is evident by what hath been said That Two Joynt-Executors being Sued cannot plead two distinct Pleas because they both represent but one person viz. the Testator who could have but one only Plea Yet others say they shall have several pleas and the most peremptory shall be tryed And if any one of Joynt-Executors Plaintiffs dies the Writ abates though he so dying was for non-appearance on summons before severed and so it is if one of the Co-Executors Defendants dies Yea if a Creditor Sue A. B. C. as Executors where only A. and B. are Executors even there by the death of C. the Writ abates Also if a man make Three Executors whereof Two refuse the Administration yet they shall be Executors by the Will and may Administer when they please and an Action ought to be in all their Names otherwise the Writ shall abate CHAP. XVII Of the Executors Interest and Possession and how it differs from that which he hath in his own proper Goods 1. What may be said to be in the Executors Actual Possession or not 2. How the Executors Interest in the Testators Goods differs from that which he hath in his own 3. Whether an Executor may by Will bequeath the Goods he hath as Executor 4. Whether the Administrator of an Intestate Executor may intermeddle with the Goods of the first Testator 5. How Testators and Executors are Correlatives as to Chattels 1. IN Chattels Personal the Executor hath such an Actual Possession presently upon the Testators death though never so far distant from him and without any laying his hands actually on them as that he may maintain an Action of Trespass against any taking them away or spoiling them though he or any for him never came near them but Chattels Real as Leases for years are not in his possession till himself or some for him actually enter thereupon But a Lease for years of Tithes be the Executor never so far distant from them at the time of the Testators death shall be in his actual possession instantly upon the setting out thereof so as he may maintain an Action of Trespass against any that shall take the same so set out though he nor any for him did never actually lay their hands thereon But in Glebe Lands into which Entry may be made the Case may be otherwise Nor are Debts accounted to be in the Executors hands till recovered So likewise Arrears of Rents yea of Inheritance behind in the Testators life-time for Executors are qualified to receive them also 2. An Executors Interest as Executor is only in his Testators Right his Interest in his own Goods is absolute and proper therefore though the Lord of a Villain might take all the Villains own Goods yet he might not take the Goods he had as Executor And from hence some have been of Opinion that an Executor granting all his Goods these are excepted which he hath as Executor except the Executor according to the Lord Dyer who is the Grantor be named Executor in the Grant 3. Nor can the Executor by Will bequeath the Goods he hath as Executor without a precedent alteration of the property thereof and with a Reconveyance thereof back to himself again 4. An Executor dying Intestate his Administrator cannot meddle with those Goods the Intestate Executor had as Executor but thereof Administration must be granted As De Bonis non Administratis to the next of Kin of the Intestate Executors Testator For thè reason aforesaid the Goods which a man hath as Executor are not liable for the Executors debts and therefore cannot be taken in Execution for his own proper debts For the same reason also the Goods which a Woman hath as Executrix are not devested out of her into her Husband by marriage nor can he have them after her death without being his Wifes Executor Upon the same ground it is as was but now hinted that the Goods and Chattels of the first Testator in the hands of his Executors Executor no alteration of the property thereof being made by his Executor shall not be liable for satisfaction of the debts of his said Executor As thus suppose A. makes B. his Executor and dies B. makes C. his Executor and dies Now if B. made no alteration of the property of the Goods of A. but meerly left them to C. In this Case the Goods which so came to B. as Executor to A. and so from B. to C. shall not be liable in Law to pay the debts of B. the immediate Executor of A. 5. There is a further discovery of an Executors Interest as to Chattels Real wherein Testators and Executors are as Correlatives for if a man make a Lease for life to one the remainder to his Executors for twenty one years the term of years shall immediately vest in the Lessee for even as Ancestors and Heirs are Correlatives as to Inheritance so are Testators and Executors Correlatives as to Chattels And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessee himself as well as if it had been limited to him and his Executors And thus a Remainder of years limited to the Executors of a Lessee shall presently vest in the person of the Lessee himself because Testators and Executors are Correlatives as to Chattels CHAP. XVIII Of the Executors Right in opposition to the Heirs in reference to Mortgages 1. How the Executor doth more represent the person of the Testator than the Heir doth the person of his Ancestor 2. The difference in point of payment whether to the Heir or to the Executor in Case of Mortgages 1. IF the Feoffee in Mortgage before the day of payment which should be made to him make his Executors and die and his Heir entereth into the Land as he
or Keyes nor Fishes in the Pond nor Doves in Dove-houses scituate in Lands belonging to the Heir Nor Bona Paraphernalia that is the Wives convenient Apparel suitable to her Degree For as they are not to be put into the Inventory of her Husbands Goods so neither are they liable to the payment of his Debts But the Wives Jewels Chains and Borders and other Rich Ornaments of her Person are to be put into the Inventory of her deceased Husbands Goods Also Debts due to the Testator are to be put into the Inventory But Monies raised upon Lands given by the Testator for the payment of Debts or Legacies are not to be inserted into the Inventory Likewise all House-hold-stuff is to be put into the Inventory under which word are comprized Tables Stools Forms Chairs Carpets Hangings Beds Bedding Linnen Bason with Ewers Candlesticks with all sorts of Domestick Vessels whether of Earth Wood Glass Brass or Pewter yea Apparel Books Weapons Tools Cattel of all kind Victuals Corn and Grain of all Sorts Waynes Carts Plow-geare Coaches though no House-hold-stuff also Plate and Jewels and generally all things not affixed to the Free-hold but coming to the Executor and not descending to the Heir are to be Inventaried but such things as are affixed to and so become part and parcel of the Free-hold and all things that descend to the Heir and come not to the Executor are to be exempted out of the Inventory The Lady C. was possessed of divers Leases and conveyed them in Trust and afterwards married with A. B. the Lady received the money upon the Leases and with part of the money she bought Jewels and other part of the money she left and died A. B. took Letters of Administration of the Goods of his Wife and in a Sute in the Ecclesiastical Court the Court would have compelled him to have given an account of the Jewels and for the Money to have put them into the Inventory but the Opinion of the whole Court of B. R. was That he should not put them into the Inventory because the property of the Jewels was absolutely in him as Husband and he had them not as Administrator but of such things as be in Action as he shall have as Administrator he shall be accountable for and they shall be put into the Inventory And for the Monies received upon Trust it was resolved that the same was the Monies of the Trustees and the Wife had no remedy for it but in Equity and therefore the Husband should have it as Administrator And in that Case it was Resolved That if a Woman do convey a Lease in Trust for her use and afterwards marrieth That in such Case it lies not in the power of the Husband to dispose of it And if the Wife die the Husband shall not have it but the Executor of the Wife CHAP. XXII Of Actions mantainable by Executors or Administrators 1. The several kinds of Actions maintainable by Executors 2. An Action Personal in the Testator is none in the Executor 3. An Executor may sue for Rents and the Arrerages thereof yea in some Case where the Testator himself could not 4. An Executor Out-Lawed or Attainted may yet have Action 5. In what Case one Co-Executor may Sue another 6. In what Court Executors ought to Sue 7. Cases in Law touching this Subject 1. REgularly Executors may Charge all others for any Debt or Duty due to the Testator as the Testator himself might have done and the same Actions that the Testator himself might have had the same for the most part may Executors have also And therefore Executors may have Actions of Account Actions of Trespass de bonis asportatis in vita Testatoris Actions of Debt against Goalers upon escape of Prisoners Writs of Errour upon the Statute of 27 Eliz. Attaints upon the Stat. of 23 H. 8. Writs of Restitution upon the Stat. of 21 H. 8. An Indemnitate Nominis when the Testators Goods are taken upon an Out-Lawry against another man of his Name Actions of Covenant for breach of a Covenant made to the Testator Action upon the Case upon the Trover and Conversion of the Testators Goods an Ejectione firmae for an Ejectment of the Testator out of a Term an Action of Debt for Rent behind in the Testators life-time also an Action of Debt for the Arrerages of an Annuity due to the Testator in his life Likewise an Executor for Goods taken from him that belonged to the Testator or for a Treaspass done upon the lease-Lease-Lands or a distraining or an impownding of Goods or Cattel may maintain Actions of Trespass or Replevin or Detinue even before the Will be Proved Likewise c. 2. But an Executor shall not have an Action for a Personal wrong done to the Testator when the wrong done to his Person or that which is his is of that nature as for which Dammages only are to be Recovered and therefore an Executor can bring no Action for the beating or wounding the Testator or for a Trespass done to him in his Cattle Grass or Corn or for a Wast by his Tenant done in his Lands for all these are but Personal Actions and die with the Testators person 3. If one grant a Rent out of his Land for life Provided that it shall not charge his Person and the Rent be behind and the Grantee dieth in this Case the Grantees Executor may have an Action of Debt for those Arrerages Likewise if any Rent or Arrerages of Rent be due to one upon a Grant of Rent out of any Land to him or reservation of Rent upon any Estate made by him of Land in these Cases his Executor may have an Action of Debt for this Rent or he may distrain for it so long as the Land chargeable with the Rent and out of which it doth issue is in his possession that ought to pay it or any claiming by or under him Yea an Executor in some Cases may have his remedy by Action for the Arrerages of Rent which the Testator himself in his life-time could not for if a man grant a Rent-charge out of certain Lands to another for life with a Proviso in the Deed that the Grantee shall not in any sort charge the Person of the Grantor generally and the Rent be behind the Grantee dieth the Executors of the Grantee shall have an Action of Debt against the Grantor and charge his person for the Arrerages in the life of the Grantee notwithstanding that Proviso because the Executors have no other remedy against the Grantor for the Arrerages for Distrain they cannot because the Estate in the Rent is determined and the Proviso cannot leave the Executors without remedy so that the word Proviso in this Case doth work only a qualification or limitation not a Condition or a Covenant 4. One that is Out-Lawed or Attainted in his own person may yet Sue as Executor because
his Suit is in anothers right viz. the Testators But he that is Excommunicate cannot proceed in Sute as Executor yet this Excommunication pleaded doth not abate or overthrow the Sute but makes that the Defendant may stay from answering his Sute until the Plaintiff be absolved and discharged from his Excommunication 5. Although one Co-Executor cannot Sue another for possession of the Testators Goods for that many Executors to the same Testator are but as one man and no man can Sue himself So that when the Testator doth make divers Executors if any one of them doth get the Goods or the possession of the Goods of the Testator the other Executor hath no Action for recovery of the same Goods or any part thereof for the said Reason that one Co-Executor cannot Sue another nevertheless if the Testator make divers Executors and do bequeath to the one of them the residue of his Goods it is not only lawful for him to whom they are so bequeathed to retain the same but also if the other Executor enter thereunto he is subject to an Action of Trespass Also if the Executor of a Co-Executor have any Goods belonging to the first Testator the other surviving Co-Executor of the first Testator may have an Action against the Executor of that deceased Co-Executor for the same Also if there be Two Administrations granted together he that is the rightful Executor or Administrator may Sue the wrongful Administrator for the Goods in his custody 6. Executors may not Sue for the Goods of their Testators in the Court Ecclesiastical but at the Common Law Yet in some Cases an Executor may Sue in the Ecclesiastical Court as touching his Testators Goods as when a man bequeathes Corn growing or Goods unto one and a stranger will not suffer the Executor to perform the Testament for this Legacy he may Sue the Stranger in the Ecclesiastical Court But if a man take from an Executor Goods bequeathed for this the Executor must Sue his Action of Trespass and not Sue in the Ecclesiastical Court Also Tenants may be Sued but at the Common Law by Executors or Administrators for Rents behind and due to the Testator in his life-time or at the time of his death and may for the same distrain the Land charged with the Rent 7. A Woman and another person were made Executors the Woman took Husband who did not alter the property of the Goods of the Testator and then the Wife died it was adjudged That the other Executor might have an Action of Detinue against the Husband for the same Goods Debt brought by an Executor as due to his Testator and Judgment given for him but before Execution the Plaintiff died Intestate and the Ordinary committed Administration of the Goods of the first Testator to another who Sued out a Scire Facias on the Judgement All the Justices agreed That the Scire Facias did not lye For that when the Executor died Intestate the Testator was dead Intestate also whereby the Judgement and Recovery was void Detinue brought by an Executrix against her own Husbands Executor the Case was this One Falconer who was the Plaintiffs first Husband made his Will gave divers Legacies and towards the end of his said Will said The Residue of all my Goods I Give and Bequeath to Frances my Wife whom I make my full and whole Executrix of this my Last Will and Testament to dispose for the wealth of my Soul and to pay my Debts and died indebted to divers persons to whom the said Frances paid the said Debts and all the Legacies having then Goods in her hand for which this Action was now brought she having after married one John Hunks who made the Defendant his Executor to whose hands the said Goods came Whereupon the Court demurred and Judgement was that the Plaintiff should recover for notwithstanding the Devise viz. of the Residue as aforesaid she hath them not as a Devisee but as Executrix because the words of the Devise can have no other intendment than that she should enjoy them as Executrix Debt brought by the Executrix of J. T. against W. B. The Case was this The said W. B. caused a Writing to be made and sealed which he delivered to V. C. to deliver to J. T. as his Act and Deed Accordingly the said V. C. offered the same to the said J. T. as the Act and Deed of the said W. B. But he utterly refused to receive the same as such notwithstanding which the said V. C. there left the said writing which matter the Defendant pleaded and said it was none of his Act whereupon was a demur and Judgement given for the Plaintiff Debt upon an Obligation Conditioned That if the Defendant in Michael Term then next ensuing in the Prerogative Court of the Arch-Bishop of Canterbury at London should give to D. his Executors or Administrators such a Release and Discharge from and against him and his Children for the receipt of One Hundred Marks as by the Judge of the Court should be thought meet That then c. The Defendant pleaded that the same Term one S. was Judge there and that the said Judge did not Devise or Appoint any Release or Discharge c. And it was thereupon demurred and adjudged to be no Plea For that it is not alleadged that he caused a Release to be drawn and tendered to the Judge to be allowed for it is on his part in discharge of his Obligation to draw such a Release as the Judge should allow Wherefore it was adjudged for the Plaintiff 5. Co. 23. b. Mich. 43 44. C. B. Pl. 42. Debt as Administrator to B. upon an Obligation The Defendant pleaded That the Plaintiff was an Alien under the Obedience of Philip King of Spain Enemies to our Soveraign the Queen and demands Judgement whether he should be Answered and it was demurred thereupon and adjudged that he should Answer Assumpsit By an Executor of a Promise made to his Testator The Defendant pleads non Assumpsit and found for the Plaintiff and Judgement for him And Errour was thereof brought and Assigned because he did not shew in Court the Testament in the Declaration mentioned Whereunto it was said That it was but default of Form which is aided after Verdict but all the Court held it to be matter of substance for otherwise he doth not entitle himself to the Action without shewing the Testament For which cause it was Reversed Debt upon a Special Verdict the Case was A Parson made a Lease for years rendring Rent at Michaelmas or within a moneth next after The Lessee Enters the Lessor dies within ten dayes after Michaelmas Whether his Executor hath any remedy for this Rent was the Question and Ruled that he had not for the Rent was not due in the Testators time nor until the end of the moneth And in such Case it hath been adjudged that such
Rent belongs to the Heir where it is reserved by a Lay-person and he dies after Michaelmas and before the moneth ended Wherefore it was adjudged accordingly vid. 10. Co. 129. Action brought by an Administrator for Rent reserved upon a Lease for years by the Intestate and for Rent arrear in his time the Action was brought and he shews how Administration was committed by the Arch-Bishop but doth not say Quod profert hic in curia Literas Administrationis The Defendant pleaded and found for the Plaintiff And it was moved in Arrest of Judgement That the not shewing the Letters of Administration was matter of Substance which made the Declaration vicious and not aided by the Statute of 18 Eliz. or 32 H. 8. by the Verdicts for that enables the Plaintiff to his Action and the omission thereof takes from the Defendant the advantage which he might have by demanding Oyer thereof and c. The Court resolved That it was a matter of Substance which ought to be shewn by the Plaintiff to enable him to his Action And the Defendant shall have advantage thereof at any time wherefore it was adjudged for the Defendant Vid. 28 H. 6. 31. 16 Ed. 4. 8. 21 H. 6. 23. Plowd 52. Errour in a Judgment in C. B. The Errour Assigned for that in Assumpsit brought as Executor although he shews himself to be Executor to him to whom the Promise was made yet he saith not Testamentum hic in Curia prolatum The Defendant pleaded non Assumpsit and found against him and Judgement accordingly And this being assigned for Errour was held to be matter of Substance and not of form only and was therefore Reversed An Executor brings Debt upon an Obligation The Defendant pleads non est Factum and found for him And now the Question was whether the Plaintiff should pay Costs upon the New Statute of 4 Jac. which exacts That in every Action where the Verdict passeth for the Defendant the Plaintiff should pay Costs but it was resolved That this Case is not within the intent of the Statute he being in anothers right and of matter which lay not in his cognizance therefore the Law never intended to give Costs against him And so it is upon the Statute of 8 Eliz. where Costs be given in case the Plaintiff is Non-suted As it was ruled in one Fords Case and so it was Ruled here And although Manne said Costs had been allowed in the like Cases they appointed that henceforth it should no more be so It was held That an Administrator shall have Trespass de bonis asportatis in vita Intestati by the equity of the Statute of 4 Ed. 3. And an Executors Executor by the Stat. of 25 E. 3. On a Scire Facias the Case was this Goth was in debt to one Couper who died Intestate his Wife took Administration and brought Debt and had Judgement to recover and died Intestate Yate the Plaintiff took Administration of the Goods of Couper non Administrat and brought Scire Facias to have Execution on the Judgement But it was adjudged that it doth not lie for want of Privity but it is clear that he may have a new Action of Debt And by Popham and Yelverton if an Administrator recover Dammages on Trespass de bonis asportatis in vita Testatoris and then dye Intestate his Administrator shall have Execution thereon otherwise of a Debt recovered which was due to the Intestate Tenant in Dower makes a Lease for years reserving Rent and takes a Husband the Rent is in arrear the Husband dies and it was agreed by the whole Court That his Executors shall have the Rent If A. make a Promise to B. and after B. die Intestate and Administration of his Goods be committed to C. who after dies also Intestate and after Administration is committed to D. of the Goods of C. In this Case D. cannot have an Action on the Promise made to B. as Administrator to G. For he is not Administrator to B. in that Administration was not granted to him of the Goods of B. unadministred by C. CHAP. XXIII Of Actions maintainable against Executors or Administrators 1. Executors lyable to be sued by Creditors though their Testators Goods not actually possessed by them or imbeziled from them 2. What kind of Servants wages Executors are lyable to pay and discharge 3. How Executors are lyable in Case of breach of Covenant by their Testator in his life-time 4. In what Case an Executor may be lyable to pay his Testators Debt out of his the Executors own proper money 5. Several other Cases wherein Executors are lyable to be sued 6. Certain Cases wherein Executors are not lyable 7. Several Law-Cases touching Actions against Executors and Administrators 1. ALthough the Executor hath not actually and particularly laid his hands upon any of the Testators Goods yet shall he be said to be in possession of them so as to stand lyable to the Creditors so far as they extend in value though afterwards others do purloyne or imbezil them 2. Executors are lyable for the payment of the wages of the Testators Servants retain'd in Husbandry and the like but not for the wages of Waiters or Serving-men the reason of the difference is because of the Statute compelling the one not the other to serve Yet for them also an Action did lie against the Testator himself because of his Covenant 3. Where a breach of Covenant happens in the Testators life-time the Executor stands chargeable Therefore if one make a Lease of Land by Deed wherein he hath nothing and die before an Action of Covenant be brought against him it will be maintainable against his Executor though no express Covenant Also if a Lessee for years Covenants to repair the Buildings or to pay the Quit-Rents issuing out of the Lands Lett the Executor to whom the Term cometh must as well as his Testator perform that Covenant although he did not Covenant for him and his Executors Likewise if one be Lessee for years or for life without any Indenture or Deed as he may be and his Rent being behind dieth In this Case his Executor shall be lyable to the payment of this Rent though without any specialty But if the Lessee for years sell or grant away his Term or Lease and die his Executor shall not be charged for any Rent due after the death of his Testator though himself in his life-time was still lyable for the Rent to grow due after until the Lessor accept the Assignee for his Tenant So that if a Lease for years be made rendring Rent and the Rent be behind and the Lessee die his Executor shall be charged for this Rent or if the Lessee for years Assign over his Interest and die his Executor shall be charged with the Arrerages before the Assignment but not with any of the Arrerages due after the Assignment Also an Executor is chargeable for Tythes due
after Argument at the Bar adjudged for the Plaintiff that it was not any Plea For they at their peril ought to take cognizance of debts upon Record and ought first of all unless for debts due to the Queen wherein she hath a Prerogative to satisfie them and although the Recovery was in another County than where the Testator and the Executors inhabited it is not material But if an Action be brought against them in another County than where they inhabit and before their knowing thereof they pay debts upon Specialties that is allowable wherefore it was adjudged accordingly Vid. 4 H. 6. 8. 21 Ed. 4. 21. Debt against an Executor who pleaded he had reines in ses mains but certain Goods distrained and impownded it was adjudged to be no Assets to charge him The Case was A. Covenanteth with B. to put his Son an Apprentice to C. or otherwise that his Executors shall pay B. Twenty pound A. doth not put his Son an Apprentice to C. and dyeth B. brings debt against the Executors of A. and it was Resolved by the Court That it lyeth not for Two Reasons 1. It cannot be a debt in the Executor where it was no debt in the Testator And if one Covenants to pay Ten pound debt lyeth against him or his Executors as 40 Ed. 3. 28 H. 8. Dyer are but if he doth Covenant that his Executors shall pay Ten pound an Action lyeth not against them 2. The first part of the Deed sounds in Covenant and the second part shall be of the same nature and condition Q. of this Reason Note Assumpsit by the Testator lies against his Executor in Case the Debt riseth upon a Loan and Promise of the Testator to pay and the Promise be for the payment of a meer debt and not to do any collateral Act and where the Testator himself by reason of such Promise could not have waged his Law in such Case his Executor is chargeable but upon a meer collateral Promise of the Testator an Assumpsit lies not against his Executor Such was the Opinion in Q. Eliz. time but now in Reg. Jac. the Opinion of both Courts was and resolved That the Action against the Executor lies as well in the one Case as in the other Scire Facias Sued by H. against W. Executor to his Father for Execution of a Judgment obtained against the Testator The Defendant pleaded Plenè Administravit at the time of bringing the Action and thereupon they were at Issue and the Jury found That the Testator conveyed a Lease in trust to one Fisher against whom the Executor had recovered One Thousand pound in Chancery which was come to the Executors hands Et si super tota materia c. Two Points in this Case were argued at the Bar and Bench 1. Whether the Plea of Plenè Administravit at the time of bringing the Writ were good in that Judgement was given against the Testator in his life-time and it was Ruled that it was not good but that in such Case the Executor should have pleaded There was nothing in his hands at the time of the Testators death because the Judgement bound him to satisfie that debt before others but by the joyning of Issue the advantage of that exception to the Plea was waved 2. Whether the Summ Decreed in Equity in the Chancery shall be Assets and they all agreed it should be Assets because the Jury found that by vertue of the Executorship it was come to the Executors hands 9 Eliz. Dyer 264. And money arising of the sale of Lands by Executors shall be accounted Assets Chapman and Daltons Case Plowd Also Dammages recovered by Executors pro bonis asportatis in vita Testatoris shall be Assets Vid. Pasch 39 Ed. 3. and C. B. Ordinary and Godfreys Case W. And others brought D. against the Defendant as Executor he pleaded Plenè Administravit And it was found by Verdict That the Defendants Wife was made Executrix who to defraud the Creditors had made a Deed of Gift of the Goods before her marriage with the Defendant and yet retain'd them in her possession and took the Defendant to Husband and died and the Defendant had now as much goods in his hands as would suffice to pay the Creditors their debts And the Court adjudged for the Plaintiff for that the Defendant confess'd himself Executor by pleading Fully Administred and therefore is chargeable because the property of the Goods passed not out of the Wife by that Grant being fraudulently made as aforesaid by the Stat. 13 Regin One sued an Executor in the Ecclesiastical Court for a Legacy who pleaded Recovery in debt against him at Common Law and beyond that he had not Assets wherewith to satisfie To which the Plaintiff in the Ecclesiastical Court Replyed That the Recovery was by Covin and that the Plaintiff in the Recovery offered to discharge the Judgement and the Defendant would not And hereupon the Question was whether a Prohibition should be awarded or not And it was Resolved That it should not be awarded for that the Covin or Fraud is properly examinable in the Ecclesiastical Court because the Legatee cannot sue for his Legacy at the Common Law Action upon the Case of Trover of Goods The Case was this a Recovery in the Exchequer was had against the Executor of P. of Debt and Dammages and Fieri Facias issued de bonis Testatoris si c. And if none then Damna de propriis the Executor dies the Sheriff levies Execution of the Testators Goods before the Return of the Writ and adjudged good notwithstanding his death after the Test of the Writ B. brings Debt against H. on a Demise for years to one unto whom H. was Administrator And the Writ was in the Debet and Detinet Whereupon in Arrest of Judgement it was shew'd in B. R. That it ought to have been in the Detinet only because against an Administrator But it was adjudged That it was good in the Debet and Detinet because the Rent due incurr'd in the Administrators time and the Land is not Assets but only so much of the Profits as the Land is worth above the Rents and the Administrator shall not answer for more than the Land is worth deducting the Rent But in all Cases where an Executor or Administrator brings an Action for a Duty Testamentary there it ought to be in the Detinet only because the Duty being demanded ought to be Assets An Executor is not chargeable for a Debt due by the Testator upon a simple Contract Regularly an Executor shall not be charged without Specialty in any Action wherein the Testator might wage his Law for that an Executor cannot wage his Law of other mens Contracts 46 Ed. 3. 10. b. 11 H. 6. b. Information in the Exchequer in nature of an Account was brought against D. Executor of W. M. supposing that W. M. had received money of the Queens amounting to One
Lease for years worth Fifty pound per annum or more out of which he payes Ten pound yearly Rent and dies in this Case not the full value of the Land yearly but only so much as is above the said Rent shall be deemed Assets in the hands of the Executor or Administrator Or suppose the deceased dies possessed of Goods and Chattels to the value of Two hundred pound and in debt to M. Two hundred pound and to N. One hundred pound and to O. Fifty pound and to P. Twenty pound and Composition is made with M. for Sixty pound or other Summ more or less under Two hundred pound In this Case the Executor is deemed to have Assets chargeable to the other Creditors for so much as is above the Summ so compounded unto Two hundred pound Or where a man is indebted Forty pound to one and Thirty pound to another and dies leaving but Forty pound in all and his Executors agree with the Creditor of Forty pound for Ten pound and have his Acquittance for the Forty pound yet the Thirty pound remaining in their hands shall be Assets 2. If Executors do Recover any Dammages for Trespass or other wrong done to the Testator the money recovered 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 monies Executors may make them Assets in their hands viz. by making Releases or Acquittances or Acknowledgement of Satisfaction for this amounteth to a Receit and chargeth the Executors towards the Creditors with the whole penal Summ though possibly they receive but part as the Principal or some such proportion But Debts or Dammages recovered by a Judgement had by the deceased in his life-time whereof no Execution was are not Assets in his Executors or Administrators hands until Execution be made yea though Execution be made and the Dammages so recovered that they be gotten into the Executors hands or possession yet if the Judgement be Erroneous and the Execution avoidable it shall not be deemed Assets in his hands for which Cause a Debt Sued and Recovered by one as Administrator to A. B. and afterwards a Testament made by A. B. produced and proved is not Assets in the Administrators hands because the Executor in the said Testament may recover it from him 3. A Mortgage Redeemed is Assets unless the Executors redeemed it with their own money Likewise Goods of the Testators redeemed by the Executor with the Testators money are Assets in the Executor it is otherwise if the Executor having no monies of the Testators doth redeem them with his own money If the Testator grant a Lease for years or Horses Sheep Plate or other Cattle unto A. upon some Condition that A. did not perform after the Testators death in this Case the Chattel reverts and comes back to the Testators Executors and is Assets in their hands Also 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 Assets in his hands because the Executor shall have the Term only as Executor So if A. undertake to deliver in to B. Twenty loads of Coles Wood or other Merchandize whatsoever and this is not performed in the life of B. but afterwards to his Executor this shall be Assets in his hands as well as the money recovered in Dammages for non-performing should have been Likewise any Goods or Chattels whatsoever given or bequeathed to any person by the Testator upon a Condition certain and the Condition not afterwards performed by such Conditional Legatary the said Goods and Chattels conditionally bequeathed do revert to the Executor and become Assets in his hands 4. Encrease gotten to the Executors by Merchandizing with the Testators Goods shall be Assets in their hands and shall charge them Likewise Dammages recovered by an Executor in an Action of Trespass shall as aforesaid be Assets and yet they were never in the Testator Also if a Lease be made to one for life the Remainder to his Executors for years and he dieth this will be Assets in the hands of his Executors though it never were in the Testator So where a Lease for years is bequeathed to A. for life and after to B. who dieth before A. although B. never had this Term in him so as that he could grant or dispose it yet shall it rest in his Executor as his Goods and be Assets in his Executors hands Likewise a Remainder for years so in the Testator that he might grant or dispose it at his pleasure though the same fell not in possession to the Testator in his life-time yet 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 In like manner Gain gotten by Trading as aforesaid with the Testators money Wool growing upon Sheep after the Testators death also the encrease of Sheep or other Cattel after the Testators death though never in the Testators actual possession shall yet be Assets in the Executor Likewise a Feoffment made to the Feoffors use for life and after him to the use of his Executors or Assigns for a certain number of years that number of years shall be Assets in the hands of the Feoffors Executor Also Goods hypothecated or pledged to the deceased in his life-time and not redeemed or the money thereof when redeemed is Assets in the Executors or Administrators hands Likewise the money raised by the Sale of the deceaseds Lands sold by his appointment by the Executors for the payment of his debts as when the deceased did in his life-time appoint that his Executors shall sell his Lands to pay his debts shall as aforesaid be Assets in the Executors hands Also if Executors had a Villein for years and the Villein purchased Lands in Fee and the Executors entered they had a Fee-Simple but it was Assets The reason was because they had the Villein in auter droit viz. as Executors to the use of the dead And if Executors having Assets do wast it or pay Debts or Legacies in any other order or method than the Law hath prescribed they must answer it out of their own Estates 5. Debts due to the Testator be not Assets in the Testators hands so as to charge him for the payment of Debts and Legacies until Judgement and Execution had or they be otherwise recovered received or released by him And an Executor paying the just value of the Testators Goods to the Creditors may retain the same Goods in his hands which nevertheless shall not afterwards charge the Executor as Assets But if question be concerning the value it is received by all that the
the Executor de bonis Testatoris and not de bonis Propriis And after a Devastavit return'd by the Sheriff and not before against the Executor or Administrator a new Execution is directed to the Sheriff to levy the debt de bonis Testatoris and if there be none of them to be found in his hands then to levy them de bonis Propriis Executoris vel Administratoris Therefore if an Executor or Administrator be sued by a Creditor and the Executor or Administrator plead a Plenè Administravit generally or plead specially that he hath no more but to satisfie a Judgement or the like and upon tryal this issue be found against him and that he hath in all or in part enough to satisfie the debt In these Cases the Judgement is de bonis Testatoris and thereupon an Execution is as in other cases to levy the debt de bonis Testatoris in the hands of the Executor or Administrator and the Costs de bonis Propriis And upon the Return of the Sheriff a special Execution doth issue forth to levy the money de bonis Testatoris And if it appear that he hath wasted the Goods then that he shall satisfie the Execution de bonis Propriis And hereupon also the Plaintiff may if he please have a Capias against the Body or an Elegit against the Lands of the Executor or Administrator and other course of Proceedings cannot nor may be had in this Case against the Executor or Administrator But a Sute Commenced against an Executor as Administrator or against an Administrator as Executor will prove invalid for neither the one nor the other is chargeable with the payment of Debts or Legacies in such an Erroneous Sute But where an Action of Debt was brought against Two Executors whereof the one appeared and confessed the Action the other making default thereupon Judgement was given to Recover against them both de bonis Testatoris in their hands and Execution accordingly And upon this Execution the Sheriff returned a Devastavit against that Executor only that made default and hereupon a Scire Facias went out against him alone and afterwards an Execution against him alone de bonis Propriis And in a Fieri Facias upon a Recovery against Executors the Sheriff Returning a Devastaverunt a Writ of Execution issues against the deceaseds Goods and if there were none such then against the Executors Goods 9. If one by Bond or Covenant oblige himself to pay such a summ of money at such a day not mentioning his Executors at all yet is the Executor also bound as included in the Name or Person of the Testator For if a man bindeth himself his Executors are also bound though they be not named in the Bond but so it is not of the Heir And in this respect the Executor doth more actually represent the person of the Testator than the Heir doth the person of the Ancestor So that every Bond or Covenant by the Testator made for payment of money or the like though he doth not Covenant for nor bind Himself and his Executors by express words reacheth unto his Executor also although he be not named And yet the Heir is not bound if he be not expresly named by the word Heir though there be never so great Assets or Land descended to him And although Executors do so represent their Testators persons that they stand lyable for their Debts though not mentioned in the Bonds yet where a man is bound that he will not sue upon such a Bond and dies if his Executors afterwards sue this is held to be no forfeiture of the Bond. So where one is bound to pay Ten pounds within a moneth after Request made to him and he dies before Request made it sufficeth not to make it to the Executor And although in a Judgment had against a Testator in his life-time no mention be made of his Executors yet are they lyable in that case for to debts upon Record and to debts and dammages already recovered against the Testator and to debts by recognizance the Executor is lyable though he be not named So likewise do Executors stand charged with other inferiour debts upon Record as Issues forfeited Fines imposed by Justices at Westminster or at Assizes Quarter-Sessions Commissioners of Sewers and the like 10. An Obligation made after a Contract dissolveth the Contract So that if a man do make a Contract to pay certain money for a thing bought by him if he make an Obligation for the money the Contract is discharged and he shall not have an Action of Debt upon the Contract And therefore if A. and B. do bargain with C. to pay him One hundred pound for Corn or other things and afterwards C. taketh some Writing Obligatory of A. only and then B. dieth in this Case the Executors of B. are discharged because they stood charged only by the Contract which is extinguished by the said specialty for such writing Obligatory doth determine or drown any duty by a meer Contract because Specialty is of a higher nature And although an Executor not named in the Obligation be notwithstanding bound as aforesaid supposing also that he that is named in the Testament hath in due form Proved the same yet is he not thereby lyable or obliged to satisfie the Creditors of the deceased as one that hath Administred unless also he hath paid the Fees due for the same out of the Goods of the deceased It was Adjuged that if an Executor pay a debt of his Testators with his own proper Goods he may retain as much in value of the Testators Goods And 6 Ed. 6. in debt by Shelley vers Sackvile Executor of H. Brown he pleaded Plenè Administravit and upon Evidence the Plaintiff shewed That the Defendant had a Farm belonging to the Testator in his hands to the value of Two hundred Marks the Defendant shewed how he had expended Two hundred Marks in payment of the Testators debts And the Question upon the Evidence was whether the Defendants Plea was receivable And upon Consultation with the Justices of B. R. it shall be received to maintain the Issue of Fully Administred for so much as it amounted unto because to make such a Retainer and Deduction as to alter the property is one and the same F. H. Executrix of F. brought Detinue of Goods against A. The Case was F. had made a will in writing and thereby given many Legacies and at the end of his Will gave the Residue of his Goods to F. his Wife whom he made his sole Executrix for the payment of his debts and to dispose thereof for the wealth of his Soul F. the Wife after takes H. to Husband who made A. the Defendant his Executor and died and against A. doth F. H. bring Detinue for the Goods of F. And it was adjudged for the Plaintiff because F. H. doth not here take the Residue of the Goods as a Devisee
his Execution shall have the preferment and before suing of Execution the Executor may give precedency to whom he will and may if he please satisfie the Recognizance before the Statute at least if he do it before Execution sued thereupon But Executors under pretence or colour of Recognizances for the peace or good behaviour or the like or under pretence of Statutes for performing Covenants touching the enjoying of Lands not forfeited nor any summs of mony possibly ever thereupon becoming payable are not to with-hold payment of debts by Specialty and thereby defraud the Creditors so that if the Statute or Recognizance be only for performance of Covenants and no Covenant be broken an Obligation for the payment of present money shall be discharged before it Also no Judgement or Statute that is discharged or is left and suffered to lye by agreement to bar others of their debts shall bar debts upon Obligations And here Note That a Statute is a more expedite remedy than a Recognizance for upon a Statute Execution may be taken out without any Scire Facias or other Sute which cannot be in the Case of a Recognizance for there if a year be pass'd after the acknowledgement no Execution can be sued out against the party himself acknowledging it without a Scire Facias first sued out against him and if he be dead then though the year be not pass'd yet must a Scire Facias be sued 6. After Statutes and Recognizances debts due by Obligations and penal and single Bills are to be paid if there be yet Assets And if there be divers Obligations then it seemeth to be in the power of the Executor to discharge which he will first unless the day of payment in the one Obligation be expired and in the other not yet come in which Case the Obligation whereof the day of payment is expired is to be first satisfied or unless a sute be Commenced for one of the Obligations for then it is not in the Executors power in prejudice of that sute to discharge an Obligation for which no Action is brought But if Two several Creditors bring several Actions against the Executor upon Two Obligations he that first getteth Judgement must first be satisfied Yet a debt due upon Record may be paid depending the Action and although in case of several Obligations when the time of payment upon the one was come at the time of the Testators death not so upon the other and he to whom the Obligation is whose time of payment was expired at the Testators death forbear to demand or sue for his debt untill the other Obligation become also payable In this Case it is then in the Executors power to pay which he please if the Goods extend not to pay both for it is the Commencement of the Sute only which intitles to priority of payment or at least restrains the Executors election therefore an Executor may not pay a debt of equal degree to a Creditor that brings no Action for the same after another Creditor hath brought his Action But whether a bare verbal demand without a sute be sufficient to hinder the Executors payment to the other is a question but resolved in the negative Yet an Executor may make payment of any debt due by Record as by Judgement Statute c. after sute begun by another for some other debt And notwithstanding what hath been said an Executor cannot in all Cases pay him first who first commenced sute but he who first hath Judgement must first be satisfied as when one Creditor doth first begin sute and others suing after him get Judgement before him And in such Cases the Executor may expedite the sute of the one by a quick confession of his Action and retard the sute of the other by Essoignes Emplances or dilatory pleas Nay after sute commenced yet until the Executor hath notice thereof he may pay any other Creditor and then plead that he hath fully administred before notice of the others sute 7. For it is a good Plea for the Executor to say That he had fully Administred before he had notice of the Plaintiffs Writ for though he do pay debts upon Contracts the Writ depending against him upon a Bond whereas he had no notice of the sute he shall not be in such case charged Yet regularly in this case of an Action brought upon a simple Contract the Executor is to plead and to set forth those debts upon Specialties yet debts upon a simple Contract are to be paid before debts of Charity Likewise debts upon a simple Contract are to be paid before amends for a Tespass done by the Testator And here Note that between a debt by Obligation and a debt for Dammages upon a Covenant broken there is not any priority or precedency but the Executor may pay which he please first But if one hath a debt due to him from the deceased upon a simple Contract or the like and he sue the Executor for it when there be debts due to others upon Bonds and Bills unsatisfied in this Case the Executor may not pay this debt nor may he suffer the Plaintiff to Recover in his Action unless he hath Assets sufficient to satisfie the Bonds and Bills over and above that of the simple Contract 8. After Obligations Debts due upon simple Bills or Merchants Books or other Specialties are to be satisfied and discharged though indeed Bills are of the nature of an Obligation and charge the Executor as well as an Obligation for whatever words prove a man to be a debtor or to have another mans money in his hands or wherein the Testator if he were alive could not wage his Law shall charge the Executor And under this Head may be placed debts due upon Shop-Books and some verbal Contracts and Covenants Parol 9. Now debts due for Rent upon Leases of Land or Grants of Rent will come into Consideration though some are of Opinion that debts due for Rent in the Testators life-time be the Rent reserved upon Leases made by or without Deed for years or at Will are in equality of degree with debts due upon Specialties if the Rent grew due since the Testators death then it is not in Law accounted the Testators debt for only so much is in Law accounted Assets to the Executor as the Profits of the Lease amounted to over and above the Rent so as for that Rent so behind the Executor himself stands debtor and therefore is sueable in the Debet and Detinet whereas for the Rent behind in the Testators life-time and all other the debts of his Testator he must be sued in the Detinet only For this reason it is that an Executor sued for debt upon Bond or Bill cannot except in some special cases plead a payment or recovery of Rent grown due since the Testators death though of Rent behind at the time of his death it be
of Succession distinguish thus viz. Either he hath only Brothers of the whole Blood or only such Brothers Children or he hath Brothers by the half Blood or such Brothers Children In the first case the Brothers only succeed in the second case only the Brothers Children in the third case the half Brothers and such Brothers Children succeed equally according to their Stock or Root not according to the number of their persons Likewise if one dye leaving one Brother and three Children of another Brother deceased of the whole Blood the Brother alone shall have as formerly declared as much as the said three Children and these do succeed exclusively to all other collateral Kindred Also Brothers of the half Blood do exclude other collaterals Ascendent as Uncles Aunts whether by the Father or the Mothers side and that without distinction of Sex But put case a man dies without Children or Parents leaving one Brother by the Fathers side only another Brother by the Mothers side only for instance A man having had two Wives and a Son by each dies and the second Wife takes another Husband having a Son by him then if the Son by the second Wife of the first Husband dies he leaves a Brother of the half Blood by the Father and a Brother of the half Blood by the Mother In this case the Civil Law sayes that the Brother by the Fathers side shall succeed in the Goods that came by the Father and he by the Mothers side in the Goods which came by the Mother and both of them equally as to all Goods otherwise acquired but our Law knows no such distinction for they shall succeed equally being equal in degree and equal in Blood because by Marriage all was invested in the Father THE Orphans Legacy The Third Part. OF Legacies and Devises THE CONTENTS OF THE CHAPTERS of the Third Part. Â Chap. OF Legacies and Devises in General 1. Of Devisors and Devises or Legataries 2. Of Words and Expressions sufficient for Legacies 3. Of Conditions and their Resemblances incident unto Legacies 4. Of the several Marks and Kinds of Conditions and Questions in Law touching the same 5. What things are Devisables by Will and whether a Testator may Bequeath what is not his own 6. Of Lands Devisable by Will 7. Certain cases touching Devises of Lands void or not void 8. Certain Cases touching Devises of Land in Fee-simple 9. Certain Cases touching Devises of Land by way of Entail 10. Certain Cases in Law touching Devises of Land for Life only 11. Certain Cases in the Law touching Devises of Leases or for a Term of Years 12. Law Cases touching Devises of Reversions or Remainders 13. Touching Devises of Lands with Limitations and upon Conditions 14. Touching Devises of Rents 15. Of Devises touching the Sale of Lands by Executors or others 16. Of Legacies and Devises in respect of Marriages as also between Husband and Wife 17. Of Legacies and Devises to a Child in the Womb. 18. Certain Cases of Devises touching Lands and Real Chattels 19. Cases in the Law touching Legacies of Chattels Personall 20. Of Legacies touching Goods in Generall also what is to be understood under that Notion of Goods and what by Moveables and Immoveables 21. Law Cases touching Money Bequeathed by the Testator 22. Of Legacies relating to Debts with certain cases in the Law touching the same 23. Touching Election in point of Legacies to whom The Election of a Legacy expressed with too much Generality or Dubiety belongs whether to the Executor or to the Legatary with certain cases in the Law touching the same 24. When and how Legacies are null or become void or voidable with certain cases in the Law touching the same 25. Certain Positions or Assertions of Law for the better understanding of this Subject of Legacies and Devises with certain mixt cases touching the same 26. THE ORPHANS LEGACY The THIRD PART OF Legacies Devises CHAP. I. Of Legacies and Devises in General 1. What a Legacie or Devise is 2. What are the Requisites to the making of a good Devise 3. Whether is more Considerable as to Legacies the Time of making the Testament or of the Testators death 4. In what Court Legacies and Devises are properly Recoverable 1. A Legacy called a Devise at the Common Law is some particular thing or things given or left either by a Testator in his Testament wherein an Executor is appointed to be paid or performed by his Executor or by an Intestate in a Codicil or Last Will wherein no Executor is appointed to be paid or performed by an Administrator The Word Devise is specially appropriated to a Gift of Lands The Word Legacy to a Gift of Chattels though both are used promiscuously For a Devise is said to be where a Man in his Testament giveth or bequeatheth his Goods or his Lands to another after his decease Observe it is formerly said That a Legacy is a particular thing given by last Will and Testament For if a man dispose or transfer his whole Right or Estate upon another That according to the Civil Law is called Haereditas and he to whom it is so transferr'd is termed Haeres but at Common Law he is the Heir to whom all a mans Lands and Herediditaments do descend by right of Blood And by the same Law the Word Devise from the French Deviser is properly attributed to him that bequeaths his Goods by his last Will or Testament in writing the Reason being for that those Goods that now appertain only to the Devisour are by this act distributed and divided into many parts 2. To the giving of Legacies or to the making of a good and sufficient Devise there are several things Required The Person of the Devisor must be Legally qualified to Devise the thing Devised must be such as is Legally Devisable The Devisor at the time of making the Devise must have Animum Testandi That the Devisee or Legatary be in his Person such as is capable of taking by way of Devise That there be no Co-action on the Testator but that his Will be free and independent without fear force or flattery or other Sinister Contrivances That the Devise be made in that due manner and form as it ought to be That the thing Devised be Devised upon none other then if any Lawful Terms and Conditions That the words of the Devise be such as do clearly declare the Mind and Intention of the Devisor That Probate be made of the Testament after the Devisors death And in case it be of Land then that the Devisor be solely seized thereof in a Fee-simple Estate and not joyntly with another and that the Testament wherein such Devise of Land is be made in writing 3. To find out the Testators mind and meaning which is the very Index of the Testament the time of making thereof is regularly more considerable in point of Legacies then the Time of the Testators death
are to be sued for in that Court only yet the Ordinary cannot take Cognizance of Freehold devised And whereas it is said That the Devisee may not take the Legacy and serve himself but that it must be Delivered to him by the Executor yet the Law is otherwise in Case Lands or any Rents or other Profit to be taken out of Lands be Devised to a Man in Fee-simple Fee-tayle for Life or Years for in these Cases the Devisee may enter into and take the thing Devised without the Executors leave for so doing CHAP. II. Of Devisors and Devisees or Legataries 1. Who may be a Devisor or Devisee or Legatary 2. What persons are incapable of being Legataries 3. Whether an Infant in the Womb may be a Legatary or a Feme Covert to her own Husband 4. Whether Bastards may be Legataries 1. REgularly every one that is qualified to make a Testament may make a Devise of the same thing whereof he may make such Testament and whosoever is disabled to the one is disabled to the other also And therefore Infants under the age of 21. years may not be Devisors of Land nor of Goods under the age of 14. as to the Male or under the age of 12. Years as to the Female Nor may a Woman under Covert Baron Devise her Lands to her own Husband or to others with or without his Consent Nor may any Ecclesiastical person or Member of a Body Corporate Devise the Lands or Goods which they have in right of the Church or Corporation So that every Devisor ought to be a person qualified to devise and that both in respect of his Person and the thing Devised he must also have at the same time Animum Testandi and the thing Devised must be such as is Devisable And as to the Devisee or Legatary all such by the Civil Law as are uncapable of Inheritances and Goods are excluded from being Legataries or Devisees and indeed from being Executors But every one by that Law that may be made an Heir or Executor may also be a Legatary or Devisee and as to any others no Devise may be made Yet with this Difference that the Executor must be a Person capable both when the Testament is made and when the Testator dyes But it is sufficient for the Legatary that he be capable at the Testators death Indeed at the Common Law it is otherwise for there a Devise or Legacy may be given to all persons to whom a Grant may be made save in some few Cases And the Devise ought to be good and sufficient in Law at the time of the Testators death Therefore if a Man Devise Lands to an Hospital or the like when there is none such at the Testators death though afterwards made or erected such Devise is Null and Void The Reason is Because Devises at Common Law are Purchases and he that taketh Lands by Purchase must be capable to take the same when it falleth to him by the Purchase Thus by the Common Law the Devisee ought to be capable at the time of the death of the Devisor which holds also True by the Civil Law Hence it is that though a Man may not grant nor give Lands to his Wife during the Coverture because they both are but one Person in Law yet by Custom heretofore he might and by Statute now he may Devise his Lands to his Wife to have in Fee-simple or otherwise because such Devise taketh not effect till the death of the Devisor and then they are not one person So then Regularly whosoever may be a Grantee may also be a Devisee or Legatee 2. For which Reason a Cominalty not Incorporate by the Kings Charter to Purchase Lands is Incapable therefore if a Man Devise Lands Devisable in Fee to A. for Life upon a certain Condition the Remainder to certain Men of a Fraternity upon the same Condition not Incorporate by the Kings Charter and enabled to Purchase this Remainder is void Therefore a Legacy given to an unlawful Colledge is void for by that is meant all Companies Societies Fraternities and other Assemblies not so Constituted by the Prince and therefore incapable of being Legataries But generally a Devise may be good to any Person or Persons not specially rendred incapable by Law for by the Civil and Ecclesiastical Law the Legacy is void if it be given to an Heretick Apostate Traytor Felon Persons Excommunicate outlawed Persons Bastard unlawful Colledge as aforesaid Libeller ler Sodomite Manifest and Notorious Usurer except in some special Cases And yet it seems that a Devise of Lands to any such Persons is good within the Statute of Wills Likewise an uncertain Person can be no Competent Legatary no more then he is of being an Executor insomuch that if a Man Bequeath any thing to a person by a certain Name without other description of his person and there be more then one of the same Name known To the Testator in this Case neither of them shall be Legatary by Reason of the uncertainty Hence it is that Devises made in these words viz. To his best Friend or to his best Friends are void Devises Or to his Son A. B when he hath two Sons of the same Name unless you can help it by an Averment which Son the Testator meant but persons named Alternatively or Disjunctively are not so uncertain but may be admitted as Legataries And therefore if the Testator Bequeath 10 l. to A. or B. or to such or such a person both of them shall have the Legacy equally betwixt them Because this word Or is in favour of Testaments taken for and when it is so placed between two persons either as to the appointing of Executors or to the making of Legataries unless it can be well proved That the Testator did bear more affection to the one then to the other Or that he gave Authority to some other person of making the Election which of the two should be the Legatary Or when one of the persons is Incapable of being a Legatary for any of the Reasons aforesaid And if the Devisor doth Bequeath to his Brother or his Children such a thing saying I give to my Brother or his Children in this Case upon the presumption of Affection the Brother shall enjoy the Legacy during his life and after him the Children shall be the Legataries But if it be Devised to him and his Children then are both the Parent and his Children equal and Joynt-Legataries And whereas it is formerly hinted That an Heretick may not be a Legatary or Devisee understand it of an Heretick that is such at the time of the Devisors death for it doth not prejudice the Legatary that fie was an Heretick at the time of the making of the Testament so as he be not one at the Testators death Add nnto this Anabaptists for the Law Civil and Canon excludes them
whereof he dyed actually Possessed or Interessed in Expectancy in his own and not in anothers Right nor in Joynt-Tenancy with another saving in some certain Cases in the Law specially excepted are Deviseable As now also are Lands Tenements and Hereditaments whereof some are Deviseable by Custom as Gavelkind and Burgage Tenure others by virtue of certain Statutes But more specifically first as to Chattels Real all Leases in Lands or Houses either for Years or Years Determinable upon Life or Lives or by Extents Statutes or Recognizances or Rents not Rents reserved by the Inheritor yet the Arraerages of them also Likewise Commons Advowsons Tithes Faires Markets Profits of Leet and the like in the Testator for Years and all such Creatures as a Termer hath in a Warren Park Pond Dove-house or the like in the Testator for Years Secondly as to Chattels Personal all Debtors taken in Execution Captives Apprentices all Cattle of all kinds Creatures naturally Tame or being otherwise are by Act reduced thereto as Hawks reclaimed or the like also Hounds Greyhounds Spannels Mastiffs Ferrits and the like also all Merchandable Goods and Commodities whatever Likewise Ships and other Vessels Naval with their Guns Rigging Tackle Apparel Furniture and Provisions Likewise Weapons for War Books Musical Instruments and the like Also Corn whether in the Ground Field or Barn And Trees Fell'd or not Fell'd being Sold from the Inheritance of the Ground or excepted by the Seller of the Inheritance of the Land Also all other Grain as Corn Also Hops Saffron Hemp and the like whether on the Ground or in the House Likewise Hay and all Fruits gathered but not Grass ready to be cut for Hay nor Fruits on the Trees but such as are seperate from the Inheritance therefore not Garden-Fruits in the Ground or not seperate from it Also Bills Bonds Mortgages Statutes and the like Also Money Plate and Jewels Likewise all Householdstuff Implements and Utinsils not fixed to the Freehold All Coaches Carts Waggons Plows and the like with their Appurtenances Likewise Desks Cabinets Trunks Chests and Boxes Excepting such as contain only the Evidences of the Inheritance and have used so to do Also all Linnen Bedding Pewter Brass and Iron that is Moveable and not fastened to the Freehold as aforesaid Therefore not such Coppers Cesterns or Furnices nor Locks and Keys Waynscot or Window-glass Finally here Note That Things in Action as Debts or the like are Deviseable so are Obligations and Counterparts of Leases Likewise Uses not Executed by the Statute of Uses but remaining at the Common Law And though Actions altogether uncertain are not Deviseable yet possibilities and uncertainties in divers cases are Deviseable 2. In and by the Question Whether a Testator may Bequeath any thing which is anothers and not his own is meant and intended any thing wherein neither the Testator nor the Executor nor the Legatary hath any just Propriety or which doth not of Right belong to either of them Now in order to the Resolution of this Question according to the Civil Law discrepant from the Common Law in this point the known Distinction is That if the Testator did certainly know the thing Devised to belong unto another and not unto himself at the Time when he Devised the same Then such Devise is good and the Executor if there be Assets sufficient is to purchase the same and Deliver it to the Devisee Otherwise it is in case the Testator were Ignorant thereof and supposed it to be his own unless the True Owner consent to the Legacy or that it was Bequeathed to Pious used And in case the Owner thereof will not Sell the same at least not at any reasonable Rate the Executor is to pay the Legatary the just value thereof 3. Suppose a Testator doth Bequeath something that is his Executors In this case the Legatary shall have it whether the Testator did or did not know it to be his The Law is the same though there be Co-Executors and the thing so Bequeathed belong only to one of them But in that case they shall all bear a proportion to be allowed them in Assets but if Assets fail the Legacy fails also 4. If a Testator Bequeath to A. B. the same thing which did appertain to A. B. in his own proper Right at the Time when the Testament was made it is a void Devise yea though A. B. should afterwards alienate the Thing so as that the property thereof were out of him at the Time of the Testators death 5. Notwithstanding what hath hitherto been said according to the Civil Law yet by the Common Law the Goods and Chattels that are another Mans are not Deviseable and therefore if one Man gives or devises another Mans House it is a void Devise So also if one Devise the Things that by special Custom of some Places as the Heir-looms do belong to the Heir this Devise is void for it is not Devisable from him 6. The Law with us is so far from countenancing a Devise of what is another Mans that it doth not allow the Goods and Chattels which the Testator himself hath joyntly with another to be Devisable and therefore if there be Two Joynt-Tenants of Goods and Chattels as when such Things are given to Two or Two do Buy such Things together and one of them Devise his part of the Things to a Stranger This Devise is void Insomuch that if in this case the Testator make the other Joynt-Tenant his Executor the Will as to this is void and he shall not be charged as Executor for these Goods but he shall have them altogether by Survivorship Nay the Goods and Chattels which the Testator hath but not in his own Right but in Right of another are not Devisable And therefore an Administrator cannot Devise the Goods and Chattels he hath as Administrator for such Devise is void Howbeit an Executor may appoint an Executor of the Goods of the first Testator which an Administrator cannot do CHAP. VII Of Lands Deviseable by Will 1. Whether Lands are Deviseable what Lands and how much thereof 2. What things may be Bequeathed under a Devise of Lands and what not 3. What Persons incapable of Devising Lands 4. Who may be Devisees or what Persons may take by a Devise of Lands and what not 5. What kind of Testament sufficient for a Devise of Land and what not 1 LAnds Tenements and Hereditaments held in Gavelkind are Customarily Devisable by Will So likewise are Lands held in Burgage-tenure whereof the Will may be only Nuncupative and without Writing and into which the Devisee after the Testators death may enter without any Livery of Seysin thereof made unto him yet this shall not prevent Survivorship in case of Joynt-Tenancy in such Tenure And though by the Common Law of this Realm Lands Tenements and Hereditaments are not Devisable yet now by Statute they are if held in Socage
a Disseisor Devise the Land he hath gotten by Disseizin this Devise as to the Disseizee is void Likewise if a Man be Disseized of his Land so that he hath nothing but a Right thereof left and then he Devise this Right or the Land this Devise is also void So if one Contract for Land and pay his Money for the same but hath no Assurance made him of the Land and he Devise the same to another such Devise cannot be good yet possibly he that received the Money may be compellable in a Court of Equity to Assure and Settle the Land according to the Devise Likewise if one Devise another Mans Land such Devise is void but if after such Devise made he Purchase this Land and die without Revocation now is that Devise good Also if A. Bargain and Sell Land to B. on Condition of Re-entry if he pay to B. Twenty Pounds and B. Covenants that he will not take the Profits until default of Payment and A. make a Lease of Seven Years thereof to another and after break the Condition in this case B. may Devise the Land and the Devise will be good 3. If one Devise his Land to the Children of A. B. by this Devise the Children that A. B. hath at the Time of the Devise made or at most at the Time of the Testators death and not such as shall be Born after his death shall take by that Devise and have the Land Also if a Devise of Lands or Goods be made to the Heirs of A. B. he then and at the Time of the Testators death being alive this Devise is void because the person to whom a Devise is made must be capable of the Devise by that Name by which the Devise is made to him when there is no other description whereby to infer the Testators meaning yet if Lands or Goods be Devised to the Executors of A. B. and he die before the Testator and make Executors This is a good Devise to such Executors or if a Man make a Feofment of his Land to the use of his last Will and then Devise that his Feoffees shall be Seized to the use of B. C. This is a good Devise of the Land per intentionem Also a Devise of Land to one paying so much a Year to another with a Clause of Distress upon failure of Payment is a good Devise but a Warranty cannot be made by a a Will Yet if Land be Devised for Life or in Tail Reserving a Rent in this case the Devisors Heirs shall be bound to the Warranty in Law and the Devisee shall take advantage thereof Also a Devise of Land may be made to one and a Devise of a Rent out of the same Land to another in the same Will and both stand good Likewise Land may be Devised to one in Fee and after the same Land in the same Will may be Devised to another for Life or for Years and both these Devises may be good and may well consist together 4. In like manner if a Man in the former part of his Will Devise all his Lands by general words to one in Fee and in the latter part of his Will Devise some special part thereof unto another in Fee Both these Devises are good and may stand together that is The former Devise is good for as much as is not afterwards more specially Devised notwithstanding the Subsequent Specification and the latter is good for so much as is so specially Devised notwithstanding the precedent general Disposition It is otherwise when the general Clause comes last for then the first Devise is void So also it is supposed to be where both the Devises are particular that then the first Devise is void As suppose a Man doth first in his Will Devise Long-acre to A. and his Heirs afterwards in the same Will he doth Devise the same Land to B. and his Heirs in this case some have held the first Devise to A. is void which others have denyed holding that both the Devises are good and that A. and B. in this case shall be Joynt-Tenants 5. If a Man Devise the Use Profits or Occupation of his Land by this Devise the Land it self is Devised Or if a Man Devise only the Profits of his Land this is a Devise of the Land it self For Lands will pass by words in a Will which will not pass by the same words in a Deed but whatsoever will pass by any Words in a Deed will pass by the same Words in a Will The Reason is because Wills are always more favourably interpreted than Deeds and there is good Reason for that also If a Man says in his Will I give all my Land or all my Tenements to A. B. he shall have not only all the Lands whereof the Devisor is Sole Seized but also all the Lands whereof he is Seized in Common or Co-parcenary with another and not only all the Lands he hath in possession but also the Lands he hath in Reversion of any Estate he hath in Fee-simple But if he say I give all my Lands in Possession only then the Lands he hath in Reversion are excluded out of that Devise 6. If a Man Seized of Land of Fee-simple in the Parish of Grade saith in his Will I give all my Lands in the said Parish to A. B. and after the Will made and published he doth Purchase other Lands in the said Parish and dyeth in this case and by this Devise A. B. shall not have the new Purchased Lands Yet by a new Publication of the Will after the Purchasing of such Lands they will pass to A. B. the Devisee Yea though he hath no Land in the said Parish at the Time of making the said Devise yet if afterwards he doth Purchase Lands in that Parish in this case such ne 〈…〉 Purchased Lands will pass by the said Devise because it shall in that case be intended that he meant to Purchase them Also if a Man hath some Lands in Fee-simple and other Lands only for Years in Dale and he Devise all all his Lands and Tenements in Dale by this Devise the Lands and Tenements he hath for Years doth not pass but if he hath no other Lands in Dale but those for Years in this case probably they will pass 7. A. Deviseth his Lands to M. his Wife until E his Daughter shall accomplish the Age of 21. Years the Reversion to the said E. and the Heirs of her Body upon Condition that she shall pay unto his said Wife during her Life in Recompence of her Dower of all his Lands 20 l. and upon default of Payment he wills his Wife shall enter and enjoy all the Lands during her life the Remainder ut supra the Remainder to I. S. in Tail and dies M. the Wife enters E. the Daughter being within the Age of 14. Years M. takes to Husband I. D. The Husband and
Justices That this was a Condition for so was the Intent of the Devisor For otherwise the Younger Sister had no Remedy for the Rent And in this Case it was Adjudged That the Younger Sister might enter upon a Moity of the Land for breach of the Condition in Non-payment of the Rent for which the Action was brought A Man had Issue a Son and a Daughter and he Devised his Lands to his Son in Tail and if he dyed without Issue it should remain to the next of his Name r The Son dyed without Issue the Daughter being then Married The Question was whether she should have the Lands It was Resolved by the whole Court That she should not for that she had lost her Name by her Marriage But if she had not been Married at the Time of her Brothers death she should have had it for she was the next of Name A. B. Seised of Lands in Socage Devised the same by Words to his Three Sisters a Stranger present Recited the Testators words to him whereat he Affirmed the same Afterwards the Stranger for his own Remembrance puts the words into Writing but read them not to the Devisor before his death This Devise so Reduced into Writing mode forme is void because it was written without the order or direction of the Devisor and consequently not within the Statute But if after the writing thereof he had read the same to the Devisor and thereupon the Devisor had Affirmed the same it had then been a good Devise It was the Opinion of c. A. deviseth his Lands to W. after the decease of his Wife and if he fail then he willeth all his part to the discretion of his Father and dyed W. Survived the Father being dead before without any disposition of the Land In this Case the Father hath a Fee-simple there being no difference where the Devise is That I. S. shall do with the Land at his Pleasure and the Devise thereof to I. S. to do with it at his discretion A Man Seised of Lands in A. hath Issue four Daughters A. B. C. D. and devised all his Lands in A. to A. and B. Two of his Daughters and made them his Executrices Afterwards he Purchased other Lands in A. A Stranger being desirous to Buy this Land of him newly Purchased he refused saying That this Land should go with the Residue of his Land to his Executors as his other Lands should go Afterwards the Testator made a Codicil and caused it to be annexed to his Will but in the Codicil no mention was made of this new Purchased Land In this Case this new Purchased Land shall not pass For Notwithstanding that the Reading of the Will and the making of a Codicil may amount to a new Publication yet it doth not manifest the Intent of the Devisor to be that more shall pass by that then he intended at the first Also the new Reading of the Will and the annexing of a Codicil may not properly be termed a new Publication And without an express Publication for this Land newly Purchased this Land shall not pass A Man Let several Houses and Lands by several Leases for Years rendring several Rents amounting to 10 l. per annum and made his Will in this manner viz. I Bequeath the Rents of D. to my Wife for Life the Remainder over in Tail By this Devise the Land it self shall pass for it appears his Intent was to make a Devise of all his Lands and Tenements and that he intended to pass such an Estate as should have continuance for a longer time then the Leases should endure and the words are apt enough to convey the Lands it being an usual manner of speaking of some Men who name their Lands by their Rents A Man Devised Lands to another Man and his Heirs The Devisee dyed in the Life of the Devisor and then the Devisor dyed In this Case the Heirs shall not take by the Devise for that the Heirs are not named as words of Purchase but only to express and limit the Estate which the Devisee should have for without these words Heirs the Devisee could not have the Fee-simple and the Heirs are named only to Convey the Lands in Fee-simple and not to make any other to be Purchaser but the Devisee CHAP. IX Certain Cases touching Devises of Land in Fee-simple 1. A Fee-simple may pass by several Words and Expressions in a Will which will not pass it by Deed. 2. A Power to Sell Land Devised passeth the Fee-simple so doth the Devise of the Land without other words on the least Consideration of a Payment to be made by the Devisee 3. A Fee-simple will pass in a Will as well by the Implication as Expression of the Word Heirs 4. A nice Distinction between Joynt-Tenancy and Tenancy in Common 5. A Devise of Lands to a Corporation for Life is a Fee-simple and whether it may pass by the Word Assigns without the Word Heirs or the Words For ever 6. A Fee-simple passeth in a Will by Implication of a power to Sell the Lands as well as by Payment of Money enjoyn'd the Devisee 7. In what Sense the Habendum shall be Construed where the Devise of Lands seems somewhat doubtful 8. In what Case a Fee-simple and all the Testators Inheritances may pass by General Words to the Devisee 9. A Devise in Fee made to one cannot in the same Will be made to another 10. How the Word Paying doth Create a Fee in a Devise and bow by a Devise of Rents the Land it self doth pass 11. A Devise shall be for the Dvisees Benefit not Prejudice also in what other Case a Fee shall pass by Implication 12. In what Case and by what Words the Fee and not Leases or the Leases and not Fee do pass by a Devise 13. Other Cases in Law touching this Subject 1. THere are many Words and Expressions whereby Lands will pass in Fee-simple by a Will which by a Deed will not so Convey the same As suppose a Man devise his Land in this manner viz. I give my Land in Dale to A. B. and his Heirs or to A. B. in Fee or to A. B. for ever or to A. B. Habendum sibi suis or to A. B. and his Assigns forever or to A. B. to give away or Sell or do therewith at his Pleasure All these and such like in a Will Create a Fee-simple Estate and A. B. shall have the Land to him and his Heirs for ever yet by such words in a Deed no more will pass then an Estate for Life save only in the first Case Also if any now since the making of the Statute of Uses Devise that the Feoffees of his Land shall be Seized of the Land to the Use of B. C. and his Heirs or to the Use of B. C and the Heirs of his Body or that his Feoffees shall make an Estate of the Land to B.
C. and his Heirs or to him and the Heirs of his Body This is a good Devise of the Land in Fee-simple or Fee-tail There are also several other ways of Fee-simple by Will For suppose Land be given to a Man Habend sibi Haeredi suo This indeed is not Fee-simple otherwise it is if it be given sibi duobus Haeredibus suis tantum So if Land be given to a Man Habend sibi Haered with warranty of the Land sibi Haeredibus suis This is a good Fee-simple Or if a Man Devise Land to A. B. for his Life and after to the Heirs or to the right Heirs of A. B. By these Devises A. B. hath a Fee-simple in the Land Also if one Devise his Land to his Wife to dispose thereof at her will and pleasure and to give it to one of her Sons by this Devise she hath a Fee-simple but it is qualified for she must Convey it to one of her Children and cannot Convey it to another 2. When in a Will power is given to a Devisee of Land by the Testator to Sell that Land such Devisee hath a Fee-simple in that Land for power to Sell giveth by Implication an Estate in Fee-simple Also if one Devise his Land to A. B. paying 10 l. without other words By this the Devisee hath the Fee-simple of the Land albeit the 10 l. be not the Dundredth partvalue of the Land In like manner If one Devise Land whereof he is Seized in Fee to A. B. paying 10 l. to G. D. By this Devise albeit there be no Estate expressed yet A. B. hath the Fee-simple of the Land in respect of the Payment of the Money This holds True only in case the Intent of the Testator doth not appear to be otherwise 3. If one in his will devise his Land to his Wife in the first place and then saith my Will is That my Son A. shall have it after my Wives death and if my Wife dye before my Son B. that then my Son A. shall pay to B. 10 l. by the Year during the Life of B. and also 100 l. to I. S. In this Case A. shall have the Fee-simple of the Land Also if one Devise his Land in this manner viz. I give White-acre to my Eldest Son and his Heirs for his part Item Black-acre to my youngest Son for his part by this Devise the the Youngest Son shall have the Fee-simple of Black-acre Or thus I give White-acre to A. B. Item Black-acre to A. B. and his Heirs by this Devise A. B. shall have the Fee-simple as well of White-acre as of Black-acre 4. If a Man Devise his Land in this manner Item I give to A. B. and C. D. and their Hoirs my Land in Kent equally or my Land in Kent equally to be divided by these words A. B. and C. D. shall have and hold the Land not as Joynt-Tenants but as Tenants in Common so that the Heir and not the Survivor shall have his part that first dyeth And yet in case of such a Limitation by Deed it is otherwise But if one Devise his Land to A. B. and C. D. and their Heirs without more words it seems that by this Devise they shall take and hold as Joynt-Tenants Yet if one Devise Land to A. B. and C. D. and the Heirs of either of their Bodies lawfully begotten it seems that by this Devise A. B. and C. D. shall take and hold as Tenants in Common and not as Joynt-Tenants Likewise the Case is the same if one Devise his Land to A. B. and C. D. in this manner viz. I Will that A. B. and C. D. shall have my Lands in Kent and occupy them indifferently to them and their Heirs But if one who hath Two Daughters only give or Devise his Land to them in Fee by this Devise they shall take as Joynt-Tenants and not be in by Descent as Partners for the Testators Will shall take place 5. If Land be given to the Mayor and Commonalty of London or any other Corporation to have and to hold for Term of their Lives it is a Fee-simple Or if a Man say I give to A. B. my House with all the Lands for 21. Years and that A. B. shall have all my Inheritance provided it be not contrary to Law In this Case A. B. shall have the Fee Or if he give it to his right Heirs Males and Issue of his Issue of his Name this also is a Fee-simple And although it be affirmed by some That if the Testator Devise his Land to A. B. and his Assigns without saying For ever A. B. shall have an Estate only for Life Yet the contrary is Asserted by others and that it is a Fee-simple 6. If a Testator saith I will my Land to my Son A. during his Life and after his decease to my Son B. And in case my Son A. shall hereafter Purchase Lands of as good Value as that Land for my Son B. that then my Son A. shall Sell the Land Devised to my Son B. as his own and shall pay 20 l. to C. D. In this Case A. hath a Fee-simple implyed by the Power which A. hath to Sell beside the Payment of Money Also if one Devise Land to me and my Heirs and in Case the Heir at Law put me out that then I shall have other Land instead thereof in this Case and by this Devise I have the Fee-simple of the first Land notwithstanding the latter words Likewise if a Testator Devise Land to me for my life the Remainder to his own Son and the Heirs Males of his Body and in default of such Issue the Remainder to the next Heir-male of the Testator and the Heirs-males of his Body In this Case the next Heir-male of the Son hath an Estate in Fee-simple 7. Suppose a Man Seised of Lands make his Will in this manner viz. Imp. I Devise to my Wife Black-acre for her life the Remainder to my Son T. in Tail Item I Will to my Son T. all my Lands in D. also all my Lands in S. also my Lands in V. Also I give to the said T. my Son all my Island or Land enclosed with Water which I Purchased of I. S. To have and to hold all the said last before Devised Premises to the said T. my Son and the Heir of his Body In this Case the Habendum shall extend to all the Lands in D. S. and V. and shall not limit the Devise only to the Island because the thing last Devised by the Will was an Island in the Singular Number which cannot Answer to the Habendum in the Plural which if extensive to the Island only T. then should have but for Life in the Lands of D. S. and V. But it was otherwise Resolved viz. That the Habendum should extend to all the Lands in D. S. and V.
well as by any other words 7. The Residue of a Term is as the Term it self 8. A Man may Devise such an Estate by Will which he cannot make by Act Executed Or he may Create an Interest by his Will which by Grant or Conveyance in his life time he could not do 9. That may be the Devise of a Lease for Years in Law which doth not seem to appear such in Fact 10. The whole Term though not named shall pass by a Devise where no other can pass by Implication 1. IF one Devise his Land unto his Executors until his Son shall come unto the Age of 21. Years the Profits to be imployed towards the performance of his Will and when he shall come to that Age that then his Son and his Heirs shall have it By this Devise the Executors shall have it until he be of 21. years of Age and if he die before that time the Executors shall also have it until the time he should have been 21. Years of Age if he had lived so long and the word Shall in this case is taken for Should Likewise if one Devise his Land to his Executors for the payment of his Debts and until his Debts be paid by this Devise the Executors have but a Chattel and an uncertain Interest and they and their Executors shall hold it until the Debts be paid and no longer 2. If one Devise his Land to A. B. and the Heirs males of his Body for the Term of 99. Years it seems that by this Devise A. B. hath but a Lease for so many Years if the Heirs Males of his Body shall so long continue and that for want of Issue Male the Term of Years shall expire And in this case the Executor or Administrator not the Heirs Males of A. B. shall have it after his death 3. If one possessed of a Term of Years Devise the same to another and his Heirs or his Heirs Male by this Devise the Executors or Administrators not the Heirs of the Legatee shall have it So that if a Lessee for Years of Land Devise all his Interest therein to his Wife if she live so long and after her death if any part of the Term be to come Devise the same to A. B. his Son and to the Heirs of his Body in this Case and by this Devise the Executors or Administrators of A. B. and not his Heirs shall have it 4. If a Man Devise all his Lands and Tenements in D. yet Leases for Years do not pass by these words for by Lands and Tenements is intended Frank-tenements or Free-hold and not Chattels 5. If one hath a Lease for Years of Land and Devise it to A. B. for life by this Devise the whole Term is Devised and A. B. shall have the whole Term if he live so long and yet A. B. shall not have an Estate for life by this Devise So likewise the Law seems to be the same upon a Grant by Deed made in that manner And if a Man possessed of a Term of Years of Land Devise his Term or his Lease or the Land it self by a Devise in either of these words the whole Term doth pass A Term of Years is Devised to the Church-wardens of the Church of D. and to their Successors This is not good but for Goods so Devised the Law is otherwise A Man who hath a Term Deviseth the Land to one and his Heirs the Devisee dyeth and hath Executors his Heirs shall have the Land and not his Executors The Law is otherwise if the entire Term were so Devised 6. If a Lessee Devise his Lease or his Term or his Farm or his Profits Tenure or Occupation thereof by either of these Devises his whole Lease and all his Interest in the Land is bequeathed as well as by any other form of words But if a Man Devise his Land only for so many Years as his Executor shall name it seems this Devise is not good Yet if it be for so many Years as A. B. shall name and he name a certain Number of Years in the Testators Life Time this is a good Devise 7 A Man possessed of a Term of Years may Devise all the Residue of that Term of Years that shall be to come at the Time of his death And if a Testator having only a Term of Years in certain Lands doth Devise the said Land to A. B. and doth not say for what Time it seems that by this Devise the whole Term is devised unless the Testators Intent doth appear to be otherwise 8. A Man possessed of a Term for 40. Years by his Will Deviseth the same to I. S. after the death of his Wife and that the Wife should enjoy it during her life and that I. S. should neither Devise it nor Sell it but leave it to descend to his Son and in the mean Time my Will is That my Wife shall have the use thereof during her life yielding 10 l. Yearly to I. S. during her life at Two Feasts and made his Wife Executrix and dyed The Wife entered and paid the 10 l. Yearly according to the Will In this Case Three Points are Resolved 1 That I. S. doth not take by way of Remainder but by way of Executory Devise And a Man may Devise such an Estate by his Will which he cannot make by Act executed And that the Case is no more but this That after the death of I. S. the Wife should have the Residue of the Term. 2 The Devise is good being but a Chattel which may vest and devest at the pleasure of the Devisor 3 That there is no difference when one Deviseth his Term the Remainder over and when a Man Deviseth his Land or his Lease or the Use or Occupation or the Profits of his Land That a Man by his Will may Create an Interest which by Grant or Conveyance he cannot Create in his life Time 9. A. Devised his Lands to his Daughter and her Heirs when she came to the Age of 18. Years and that the Wife should take the Profits of the Land to her Use without any accompt to be made until the Daughter come to 18. Years and made his Wife his Executrix and dyed provided the Wife should pay the old Rents and find the Daughter at School the Wife enters proves the Will takes Husband and dyes It was found that all the Conditions were performed and that the Daughter was within the Age of 18. Years It was Resolved in this Case That it was a Term for Years in the Wife and a good Lease 10. A Man was Lessee for 40. Years of a House and by his Will gave the House to I. S. without limiting any Estate That he should have in it It was the Opinion of the Court That he should have the whole for no other Estate in the House either for Life or at Will shall pass by Implication or for one Year
right Heirs and after the Grantor Devise the Land to a Stranger in Fee and die the Heir of the Devisor may Devise the Remainder of the Rent in Fee 18. A Lease for Term of 100. Years is made to a Bishop and his Successors he maketh a Lease for life Rendring Rent to him and his Successors and after he Deviseth the Reversion with the Rent in Fee this is a good Devise for the Reversion but not for the Rent 19. If a Man having Two Sons and a Daughter Devise his Land to his Wife for Seven Years the Remainder to his Younger Son and his Heirs and if either of the said Two Sons die without Issue of their Bodies the Remainder to the Daughter and her Heirs and the Younger Son die in the life Time of the Father and after the Father die in this case and by this Devise the Daughter hath a good Remainder but it seems the Elder Son hath first an Estate Tail by the Intent of the Devisor 20. If Land be Devised to A. for life the Remainder to B. for life the Remainder to I. S. in Fee in this Case if B. be a Person incapable of a Devise then he in the Remainder in Fee shall take presently after the first Estate for life ended And if the Devise be to a Person incapable for life the Remainder to I. S. in Fee then shall I. S. take presently 21. If a Man Devise his Land to two persons by name and the Heirs of either of their Two Bodies and for default of such Issue the Remainder to the right Heirs of the Devisor after the Devisors death one of the said Devisees dies without Issue the other Devisee hath Issue and dyeth In this Case and by this Devise the issue of such surviving Devisee shall have a Moity and no more of the Land 22. A Lease is made to I. S. for the Term of the life of I. N. the Remainder to the same I. N. for Term of life of the said I. S. I. N. in Remainder releaseth all his right to the said I. S. and dyeth In this Case the Lessor may Devise the Reversion And if a Man who hath a Reversion Deviseth this Reversion by the name of all his Inheritance or Hereditaments in D. it is a good Devise 23. If a Man having Issue Three Sons A. B. and C. doth Devise his Land to C. the Remainder to the next of Blood to the Testator In this Case and by this Devise A. shall have the Land after the death of C. as the next of Blood Likewise if a Man having Four Daughters Devise his Land to the Youngest in Tail the Remainder to the next of Blood by this Devise the Eldest Daughter and not all the rest shall have the Land after the Estate Tail Also if a Man hath Two Sons and a Daughter who hath Two Daughters Devise his Land to a Stranger for life the Remainder to his second Son for life the Remainder in Fee to the next of Blood to his Son in this Case if the Eldest Son die without Issue the Daughter and her Daughters shall have the Land 24. If Land be Devised to A. for life the Remainder to B. and the Heirs of his Body the Remainder to C. D. and his Wife and after to their Children by this Devise C. D. and his Wife have Estates for their Lives only and their Children after them Estates for their Lives Joyntly And albeit they have no Children at the Time yet every Child they shall have after may take by way of Remainder If one Devise his Land in this manner viz. I give my Land to A. in Fee-simple after his decease to B. his Son who is his Heir apparent By this Devise A. hath an Estate for life first the Remainder to his Son for his life the Remainder to the Heir of A. in Fee-simple One Devised his Land to I. S. from Michaelmas following for five Years Remainder after the Plaintiff and his Heirs He dyed before Michaelmas The Question was Whether this were a good Remainder Because it could not enure instantly by his death for it may not begin until the particular Estate which was not to begin till after Michaelmas and a Freehold cannot be in Expectancy But all the Court held That it very well might Expect For in Case of a Devise the Free-hold in the mean Time shall descend to the Heir and vest in him Wherefore without Argument it was Adjudged accordingly and that the Remainder was good If one Devise a Personal Chattel to one for life the Remainder over to another it is a void Remainder If a Man Devise a Term to one for life the Remainder to another for life with divers Remainders over The Executors Consent to the first Devisee will be a Consent as to all the other Remainders Or in Case a Man Devise a Term to one and a Rent thence issuing to another and dies the Executors Consent to the Devise of the Term is an Assent also as to the Rent If an Estate be given to the Husband and Wife and the Heirs of their Two Bodies the Remainder to the right Heirs of the Husband he may Devise that Remainder to his Wife CHAP. XIV Touching Devises of Lands with Limitations and upon Condition 1. The Condition of a Devise of Land not written in the Testators Life Time makes the whole Devise as void as if the Devise it self had not been written 2. A Fee-simple of Remainder upon Condition by way of Devise 3. In what Case the Executors of a substituted Devisee cannot claim the Lands Devised under Limitations 4. A Condition or Limitation may not continue a Devised Estate for part and defeat it for the residue 5. In what Case the word Paying shall be construed only as a Limitation and not as a Condition 6. Not he in Remainder but the Heir shall take the advantage of a Condition broken annexed to a Devise of Lands 7. A Condition or Proviso contrary to Law is a void Condition 8. The Heir may enter upon a breach of Condition notwithstanding a failure of somewhat that ought to have been done by a Third Person 9. The Heir may not enter where it is but a Limitation and not a Condition 10. If the Condition be That a Lessee shall not Demise the Premises for above one Year and he Devise the Premises it is a breach of the Condition 11. Lands Devised upon Condition of superstitious Vses are vested in the Crown 1. IF a Man give order for the writing a Devise of his Land to A. B. upon Condition and the Devise to him be accordingly written but the Testator dyeth before the writing of the Condition in this Case the whole Devise to A. B. is void And as in the case of Goods and Chattels conditionally bequeathed the Executor shall keep the Thing until the Condition be performed and after the Condition broken shall take advantage thereof So
this case she hath those Lands for life and she having no Issue hath not any Interest to dispose but hath an Authority to nominate two who shall dispose of the Lands and they may make Sale thereof 9. A man did Devise his Lands which were held in Socage to be sold by his Executors and that the Money thereof coming should be disposed of in payment of special Legacies which he Appointed by his said Will the Executors sold the Lands One of the Legatees after the Will was Proved sued the Executors in the Ecclesiastical Court for his Legacy whereupon a Prohibition was prayed It was resolved in that Case 1 That the Money was Assets in the Executors hands 2 That there was no Remedy for it but by Suit in the Ecclesiastical Court and therefore a Prohibition did not lye in the Case But Querie of the second payment for it was held by all the Justices of both Benches Where a man Deviseth that his Executors shall sell Lands and of the Money coming shall give such a Portion to his Daughter That this was not a Legacy because going out of Lands and that Suit did not lye for it in the Ecclesiastical Court But an Accompt lyes at Law for the Money And therefore in that case a Prohibition was granted to stay the Suit in the Ecclesiastical Court 10. A Devise was made to A. B. for life the Remainder to C. D. in tayle and if C. D. dye without Issue of his body that then the Land shall be sold by his Executors he maketh two Executors and dyeth A. B. dyeth C. D. dyeth without Issue of his body In this case it seemeth that one of these Executors alone can not sell the Lands 11. A man Devised his Lands to his Wife for term of her life the Remainder to D. his Daughter in tayle and if she dyed without Issue that then after the death of his Wife the Lands should be sold for the best value by his Executors with the Assent of A. and B. And made his Wife and a Stranger his Executors and dyed the Wife Entered and dyed A. and B. dyed and the Executor who survived sold the Land alone The Opinion of the Court was That the Sale was not good because he wanted sufficient Authority 12. A man seised of divers Mannors and Lands Devised all the said Mannors and Lands to his Sister and her Heirs for ever Except out of this General Grant my Mannor of R. which I do Appoint to pay my Debts and made two Executors by Name and dyed One of the Executors dyed the other took upon him the charge and Execution of the Will and afterward sold the Mannor of R. for 300 l. for the purpose aforesaid in Fee It was the Opinion of the Court that he might well sell it for by the Circumstances it appeareth That such was the Testators intent and not to leave the Reversion to Discend to his Heir but to trust his Executors with the Sale of it for the payment of his Debts 13. A. made B. and C. his Executors and by his Will appointed that they should have and hold the Issues and Profits of his Lands until his Heir should come to the age of 21 years to the intent that the Executors with the Profits thereof should pay his Debts and Legacies and bring up his Children One of the Executors dyed the surviving Executor made his Executor and dyed also the Heir being within age It was the Opinion of the Court in this case that the Executor of the survivor might receive the profits of the Lands and dispose of them during the Non-age of the Heir because it was an Interest in the Executors and not an Authority or a Trust only 14. If a man hath Feoffees and makes his Will That his Executors shall alien his Land if the Executors Refuse the Administration of his Goods yet they may sell the Lands because the Will is not of a thing Testamentary But the Executors have not a power to meddle with the Land unless such a special power be given to them If a man makes his Will of his Lands and that his Executors without naming them by their proper Names shall sell them if they refuse to be Executors yet they may sell the Land But if a man makes his Will that his Lands which his Feoffees have shall be sold and doth not say by whom the Executors shall sell the same and not his Feoffees because the Moneys which come by the Sale shall be Assets in the hands of the Executors which is a proof that they may sell them And if his Will be That the Executors shall sell the Lands before the Alienation the Heir may take and Receive the profits thereof and if no Sale be made the Heir shall hold the Land for ever 15. A man Deviseth That his Executors shall sell his Lands Now by the Stat. of 21. H. 8. cap. 4. If the one refuseth the other may sell the Lands but the Sale can not be made to him who refuseth 16. A man made his Will and made A. B. C. D. his Executors and Devised his Lands to the said A. B. C. D. by their special Names and to their Heirs And further Devised that the Devisees should sell the Lands to F. G. if he would give for it before such a day 100 l. and if he would not that then they should sell it to any other to the performance of his Will viz. the payment of his Debts F. G. would not give the 100 l. one of the Executors refused to intermeddle the other three sold the Land It was the Opinion of the Court that the same being a special and a Joynt-Trust that it could not survive and that the Sale by the Three was void 17. By the Premises it is Evident That if a man Willeth that his Executors shall sell his Lands for the payment of his Debts and they all dye but one and the survivor make the Sale the Vendee shall not have the Land and that the Law is otherwise if the Lands were Devised to the Executors to be sold The Reason is as aforesaid because in the former case the Executors have only an Authority in the other case they have an Interest But if a man maketh two Executors and willeth that they shall sell the Lands for the payment of his Debts And they sell it only for term of life the Remainder to one of themselves and the Vendee dyeth he in the Remainder may Enter Sed Q. CHAP. XVII Of Legacies and Devises in respect of Marriage As also Between Husband and Wife 1. A Condition of Marriage may be annexed to a Legacy but an unlawful Condition thereof is void and doth not prejudice the same 2. A Condition of Marriage with the Consent of a Third person doth oblige the Legatary to Marry if he will have the Legacy but doth not oblige him to have such Consent 3. A
Son to his Mother 10. A man bequeaths the House wherein he lives to A. B. his Wife quamdiu she shall continue a Widdow and dyes A. B. doth not Re-marry but lives and dyes a Widdow In this case the said House by the Civil Law comes to A. B. and his Heirs for ever Note that what in the premises hath been said touching the invallidity of Conditions against Marriage annexed to Legacies in relation to Females holds the same in Law touching the like illegal Conditions in reference to Males or Masculines 11. A man Devised to his Daughter 500 l. towards her Marriage In this Case it was the Opinion of the Court That if she die before Marriage her Executors shall have it But if the words were To be paid at the day of her Marriage or at the age of 21 years and she dyeth before both it is otherwise The latter part of which Judgment seems not to agree with the Civil Law in that point which sayes the time of the age of a Legatary may be joyned either to the substance of the Legacy or to the execution and performance of the same if the time of the age of the Legatary be joyned to the substance of the Legacy as when the Testator doth give thee 100 l. when thou shalt be of the age of 21 years In this case if thou dyest before that time thy Executors cannot recover the 100 l. But if the time of the age of the Legatary be joyned only to the execution or performance of the Legacy as when the Testator doth give thee 100 l. which he willeth shall be paid when thou accomplish the age of 21 years In this case although thou dye before thou accomplish the age of 21 years yet thy Executors or Administrators shall recover the same when the time is accomplished wherein thy self if thou hadst been then living mightst have recovered the same 12. Consonant whereunto is that which we find Reported viz. That it was agreed by the Court That if a man Deviseth to his Daughter 100 l. when she shall be Married or to his Son when he shall be of full age and they dye before the time appointed and make Executors their Executors shall not have it But it is otherwise if the Devise were to them to be paid at their full ages and they dye before that time and make Executors there the Executors shall have it Which difference was since likewise so Agreed and Adjudged 13. A Feme Sole Deviseth Lands to A. B. in Fee to whom afterwards she was Married and during the Coverture Countermands her Will saying her Husband should not have the Land nor any other benefit by her Will and dyes In this case the Husband shall not have the Land not only because of her Countermand but because of the disability of a Feme Covert to make a Will which takes no effect till the parties death And therefore if a Feme sole Deviseth Lands to a man and then takes him to Husband and dyes This Inter-marriage is a reversion of the Devise and the Heir of the Woman shall have the Lands and not the Husband because after Marriage the Will of the Wife in Judgment of Law is subject to the Will of her Husband and a Feme Covert hath not any Will for the making of the Will is but the Inception thereof and takes no effect till the death of the Devisor 14. If a man Deviseth Lands generally to his Wife for the Term of her life It cannot be averred to be for the Joynture of the Wife and in satisfaction of her Dower But if a man Deviseth Lands to his Wife for life or in tail for her Joynture and in satisfaction of her Dower the same is a good Joynture within the Stat. of 27 H. 8. 15. A man Devised the Moiety of his Goods to his Wife and dyed It was the opinion of the Court That she should have the Moiety of them as they were at the time of his death if his Executors had Assets sufficient to pay his Debts If a Legacy be given to a Woman Covert and her Husband give a Release and afterwards he and his Wife sue in the Ecclesiastical Court for the Legacy the party sued shall not have a Prohibition upon the Husbands Release because the Temporal Judges cannot meddle with a Legacy nor consequently determine whether the Release will extinguish the same As the Case 29 Eliz. Adjudged The Husband may Devise to his Wife although they are but one person in Law for it takes no effect till after his Death CHAP. XVIII Of Legacies and Devices to a Child in the Womb. 1. A Devise to an Infant in the Womb is good 2. It may be good though the Infant be rip'd alive out of the Womb. 3. It is good though it be a Devise in Remainder or in Tail 4. How the Divident of a Devise shall be in case of Twins unexpected or an Hermophrodite 5. How the Legacy shall be apportioned when bequeathed to any Child in the Womb and more then One or Two happen to be Born 6. Where a Devise void or voidable in his Inception may become good by matter ex post facto 1. THat a Child in the Womb to whom a Legacy is bequeathed or Lands Divised is after his or her Birth though subsequent to the Testators death capable of taking by such Devise is a Truth now not to be controverted though it hath been Contradicted and otherwise Resolved for we find it Reported in a Case thus stated viz. A Man had Issue Five Sons his Wife being with Child with the Sixth at the time of his death and by his last Will declared That the Third Part of his Land should descend and come to his Son and Heir the other Two Parts he bequeathed to his Four Younger Sons by Name and to the Heirs Males of their Bodies and if the Infant in the Mothers Womb be a Son then he to have a Fifth Part as Co-heir with his Four Elder Brothers The Sixth Son was Born after the death of his Father in this Case it was Resolved That the Son Born after the death of the Father should not have any thing because he was uncapable as a Purchasor when the Devise was first to take effect because he was not then in esse or rerum natura Notwithstanding which it was not long after in another Case otherwise understood in which Case it was Admitted That a Devise to an Infant in his Mothers Belly was good It is presumed the intendment is of such an Infant as was born after the Testators death In other Cases also it hath been held That Devise to an Infant in his Mothers Belly is good 2. A Man Deviseth his Land to his Wife being with Child the Remainder to the Issue en ventre safeme his Wife in Travail dyeth and the Son is rip'd from his Mother alive he shall have the said Remainder
the Devise of a House with all things therein 32. The Difference between a Devise of a Chamber and the Devise of a Shop 33. The Devise of a Field carries also the Edifice erected thereon 34. The Civil Law where the Fee of Land is Devised to one and the Rents of the same Land to another 35. in what Case an error or mistake in the Testator may be a prejudice to the Legatee 36. A Legacy or Devise may be inferr'd as well from the Testators Intention as Expression 37. A Devise by Reason of an Omission of that whereof the Testator said he would make a description is not void 38. A Legacy to Two whereof one is not accrews in the whole to the other that is 39. Further Exemplifications of Law touching Devise of Houses altered burnt and re-edified 40. An Exception of a Thing which is not is no prejudice to the Devisee 41. The same thing Conditionally twice Devised by two Testators to several Persons how or in what Case good to either or not 42. By a Devise of ground doth pass the Edifice thereon albeit it were erected after the Devise made 43. How a Devise is to be apportioned where the Devisees are joyned in the thing Devised but disjoyned in the manner of Devising 44. A Devise of Lands by a certain Name carries all of that Name though otherwise distinct unless the Testator intended otherwise 45. Any words that do but plainly declare the Testators meaning may serve for a Devise 46. The Executor shall pay the Land-lords Rent for Ground in Lease the Fruit or Proceed whereof is Devised to another for the Term. 47. A mistake in the Testator only of the Scituation of the Lands Devised shall not prejudice the Devise 48. The difference between necessary and voluntary Alienations prohibited to Devisees by a Testator 49 A Tripartite Case in point of Alienation prohibited by a Testator 50. How the disjunctive Or in Legacies and Devises is frequently understood for the conjunctive And. WHere a Man is Seised of a House in Fee or of Land in Fee and may devise such House or Land in such case may Devise the Doors Windows Wainscot or the like Incidents of the House also the Trees and Grass growing upon such Land Otherwise it is with a Tenant in Tail for Life or Years in Houses or Land 2 If a man hath an Use that is not Executed by the Stat. of Uses but remains at the Common Law he may make a good Devise thereof And therefore if one possessed of a Term of years grant it over to another to the use of the Grantor he may Dispose this use by his Will for it is in the Nature of a Chattel 3. One that hath Money to be paid him on a Mortgage may Devise this Money when it comes If A. Enfeoffe B. of Land upon Condition that if B. do not pay A. 100 l. such a day that then A. may Re-enter In this case A. may Devise this 100 l. if it be paid and the Legacy is good albeit it be made before the day of Payment come 4. A Man cannot Devisc by his Will any Real Chattels that he hath only in right of his Wife nor the Obligations that are made to her alone before or during the Coverture nor the Chattels Real or Personal which she hath in right only of another as Executrix But all her own proper Goods and Chattels Personal and all Obligations made to them both during Coverture he may Devise by Testament 5. A Bishop cannot by his Testament Devise the Presentation of a Church that became void in his time yet if he or the Parson of a Church have the Advowson thereof in Fee and Devise that Two or Three of his Executors shall present at the next Avoidance this is a good Devise 6. By a Devise of Immoveables which are Chattels real do pass Leases Rents and the like and by a Bequest of Moveables which are Chattels Personal will pass Bonds and Specialties but Debts pass not by either of these Devises By Immoveables are understood not only the foresaid Chattels-real but also in some sense Trees growing on the Ground Fruit on the Trees Terms of Years and the like and by Moveables are Regularly understood all Goods both Actually Moving and Passively Moveable 7. If a Man Bequeath to A. B. all his Goods he shall thereby have the Testators whole Estate his Lands Tenements and Freehold excepted and thereby the Debts and Money If he Bequeath to him all his Chattels he shall have thereby all as in the former Case If he Bequeath to him all his Moveables he shall have all his Personal Goods both quick and dead and if he Beqneath to him all his Immoveables he shall have all the Testators Leases and all the Natural Fruits thereof as Grass on the Ground Fruit on the Trees and the like consequently Fishes in a Pond Pidgeons in the Dovehouse c. as Appurtenances to the Ground Devised as well as the Natural Fruits or Grass growing on the same 8. If a Man Devise all his Goods and Chattels to A. B. and die and A. B. die also before he hath proved the Testators Will in this Case the Administration of the Goods and Chattels of the said Testator shall be committed to the next of Kin of the said A. B. and not to the next of Kin of the said Testator because in this Case A. B. was the universal Successor 9. If a Woman under Coverture Devise her Land then publish and approve it after her her Husbands death when she is sole by this means that Devise which was Originally void is now become good But if she make and publish it during the Coverture albeit her Husband doth afterward die and she become sole yet this accident alone without a new publication after her Husbands death will not make that Devise good The Law is the same as to Goods and Chattels 10. In like Manner if an Infant within Age as to Lands or within Age as to Goods Devise the one or Bequeath the other and publish the Will and after he come to full and competent Age publish and Approve it again By this means the Devise or Legacy becomes good otherwise it is in Case he do not Publish and Approve it when he attains to Full and Competent Age. 11. Suppose the Testator doth Devise in this manner viz. I Will that my Executor shall pay 100 l. to A. B. by the Tenth day of March next after my decease and if otherwise then my Will is That my Executor shall Surrender to him all the Right I have in a Lease of my Ground called Black-acre and dies The Executor doth not pay to A. B. above 90 l. by the day Appointed In this Case A. B. restoring the said 90 l. to the Executor shall have the said Ground and he may detain the Money till he recover the Land 12. Suppose the Testator doth Devise the
Fruits of an Orchard or other Lands which at a Rent certain he hath taken to Farm for Seven Years who shall pay the said Rent the Executor or the Legatary It is Answered That the Executor shall pay it because it is a Personal Charge Or if he Devise certain Lands which he had lately bought but the whole purchase-money not paid at the Testators death the Executor and not the Devisee is lyable for the same But the Devise shall not take effect till the same be paid if there be no other Assets wherewith to pay it 13. A Man possessed of Three Fields whereof Two called Rushcrofts the one being of much better value then the other the third called Longlands doth Devise one of his Rushcrofts or Longlands which he will to A. B. and dies In this case A. B. hath his Election whether he will have one of the Rushcrofts or Longlands but if he chuses one of the Rushcrofts it shall be that which is nearest in value to Longlands 14. A Man made his Will and therein Devised to A. B. all the Lands which he had in the Tenure or Occupation of his Tenant C. D. Consisting of Meadow Pasture and Arrable Grounds Scituate about the Farm-house of the said C. D. and dies The Question was Whether other Pasture and Arable Grounds belonging to the Testator in the Tenure or Occupation of the said C. D. and by him Rented of the said A. B. but not Scituate as aforesaid were to be Comprized within this Devise In this Case it was Resolved in the Affirmitive The Reason is because the quality or Circumstance of the Place or Scituation is not here joyned with the Devise for any Restrictions sake but only by way of Demonstration 15. A Man bought certain Lands of A. B. with a Clause or Covenant of Redemption within a certain Time in the Nature of a Mortgage The Time of Redemption being Elapsed the Purchaser made his Will and therein ordered That his Executor should Restore the said Lands to A. B. paying what Costs and Charges the Testator had been at and Expended about the said Lands The Question was Whether the Mortgagor or Vendor now the Legatary or Devisee were in this Case obliged to pay the Redemption-money over and above the said Costs and Charges which the Testator had Expended about the Lands as aforesaid In this Case it is Resolved in the Negative viz. That the Devisee shall have the Land paying only the said Charges and without paying the Redemption-money 16. A. B. by his last Will and Testament makes his Two Sons C D. and D. B. the Joynt-Executors of all his Estate and dies C. B. for a certain Sum of Money Sells his Part or Interest in the said Estate unto D. B. his Brother After D. B. makes his will and therein Devises to the said C. B. all his Interest in the said Estate by his Father and dies The Queston was Whether C. B. by that Devise should have all the said Estate whereof the Two Brothers were made Joynt-Executors by their Father or only so much thereof as accrewed to D. B. by vertue of his Co-executorship In this Case the D. D. are somewhat divided but the prevailing Opinion is That C. B. by this Devise shall have no more then accrewed to D. B. by virtue of his Co-executorship because the other part of the Estate was his by Purchase and not by being Executor to his Father and the Property being altered by the Sale it ceased to be the Fathers Estate or any Estate to D. B. by the Father and became his own proper Estate by Purchase But the Question is put a little further as whether the said Devise shall be made good as the said part was when the Father dyed or as it was at the time of D. B. the Testators death In this it is Agreed That the said Devise shall be considered only as the Estate was at the Time of the death of the Devisor D. B. and not as it was at the Time of the death of his Father 17. A. B. being possessed of several Houses by Lease doth Devise Two of them in his last will and Testament unto C. D. such as he shall chuse or Two of them to C. D. which he will the rest to I. G. In this Case if C. D. refuse to take by this Devise and will chuse neither of the said Houses I. G. shall have them all 18. A. B. makes his Will and thereof C. D. his Son the sole Executor in which Will he appoints that a Fourth part of his Estate shall be given to the Poor in Case C. B. die without Issue C. B. Survives the Testator hath a Son makes his Will and therein Ordains That if his Son should happen to die Intestate and without Issue that then the Contents of A. B. his Fathers Will should be performed and dies leaving Issue a Son After the said Son of C. B. dies Intestate and without Issue In this Case In this Case some are of Opinion That the said Fourth part of A. B. the first Testators Estate is not due to the Poor because that general disposal which C. B. made in his Will ought to be understood only of such Things as might be claimed by the first Will and which could be due only by the same Others conceive That it is due to them in Case there were no other Legacies contained in the Will of A. B. which his Son C. B. was to see performed and discharged 19. If a Man doth Devise Land whereon is no House at the Time when the Testament was made but One is built thereon before the Testator dies in this Case the House as well as the Land shall pass by this Devise Likewise if a Testator Devise a Bond or Debt owving to him by some Goldsmith or Banker the principal whereof hath produced an encrease by the Interest thereof since the time of making the Devise In this Case by the Civil Law the Legatary shall have such Interest in the Bankers Hands as well as the Principal which accrewed by vertue of the Principal during the Testators life after the making of the Testament which by that Law holds true in all Credits producing an Interest or Accessory profit yet it is otherwise even by that Law as to annual Rents payable out of Land for therein the Civil doth agree with the Common Law That the Arrears of such Rents behind at the Testators shall go to the Executor and not to the Legatary to whom the Land is Devised 20. If the Legacy be not in being in rerum natura at the Time of the Testators death then neither the Thing bequeathed nor the value thereof is due to the Legatary but if the Thing Devised is only by any Impediment obstructed from being delivered in kind then the Devisee shall recover the true value thereof 21. If a Testator Devise in these words viz. I give
cedit Legato As we use to say Cujus est solum ejus est usque ad coelum 43. Suppose the Testator doth Devise one half of his Lands in Dale to A. B. and doth Devise the same half part of the same Lands to C. D. and doth Devise all his Lands in Dale to J. G. and so joyns them all in the thing and disjoyns them in and by the words In this case J. G. ought to have one Moiety of the Lands A. B. and C. D the other Moiety After C. D. dyes before the day of performance of the Devise by which means his part accrews to his Collegataries by way of Accression or as we say by way of Survivorship and not to his Heir nor Executor Therefore as J. G. had more in the Devise than A. B. so now he hath more than A. B. in that part of C. D. 44. A. B. Possessed of divers Lands and Tenements among which were certain Lands called Lillystones and so called time out of mind but in regard of its great Extent he did for the better and more Commodious Letting it to Farm divide it into two parts and called the one the Vpper Lillystones the other the Lower Lillystones A. B. makes his Will and therein gives divers Lands and Tenements to his Niece among which he gives Lillystones not saying whether the Upper or the Lower Lillystones The Question is whether his Niece shall have all the said Lillystones or onely one of the said divided parts thereof It is Resolved she shall have the whole unless the Executor of A. B. can prove the Testator intended her only one part thereof 45. A Testator makes his Son Executor and in his Will saith Let my Hop-yard at the lower end of my Orchard and my Ground in the Parish of D. suffice my Cosin A. B. It is a good Devise of the Ground and Hop-yard to A. B. So likewise if he had only said let my Cosin A. B. be contented with the said Ground and Hop-yard or with my House scituate in c. Note that in this case the person of the Devisee must not only as in all other Legacies be certain but also the Land Devised must by the Description of its scituation be reduced to an infallible certainty otherwise the Devise will be void 46. A. B. Rents certain Orchards at 20 l. per ann for the term of Seven years makes his Will therein gives the Fruit thereof for the residue of the term yet to come and unexpired unto C. D. orders his Executor to deliver him the Lease to suffer him to enjoy the Fruits of the said Orchards for during the term aforesaid In this case the Testators Executor shall pay the said Rent and suffer C. D. to enjoy the Fruits thereof otherwise the Legacy might be nothing worth or if Fruit fail worse than nothing 47. An Erroneous demonstration by a Testator of the scituation of Lands Devised by him shall not prejudice the Devise As thus The Testator in his Will saith I Devise my Lands of Cammerweli which are in Ireland unto my two Nephews A. B. and C. D. Also my Lands of Kirkaven which are in Scotland and dyes After the Testators death there are found certain Lands which belonged to him called Kirkaven but they are not in Scotland The Question is whether those Lands in the description of whose scituation the Testator was mistaken do belong to the Devisees It is answered in the Affirmative if it appear the Testator had any thoughts of Devising them at all 48. A Testator makes his Son Executor and in his Will Prohibits him from alienating or Mortgaging the Estate or any part thereof whereto he is entitled by such Executorship commanding him to preserve the same for his Children lawfully begotten and dyes The Son for 100 l. doth Mortgage or sell outright to A. B. such certain Tentments of the said Estate as his Father the Testator left at his death in Mortgage to C. D. for 100 l. and with the Proceed thereof pays off the said 100 l. to C. D. to whom his Father in his life time had Mortgaged the same The Question is whether the Sons Obligation or Alienation thereof to A. B. contrary to the Testators express command be good in Law It seems not because of the Testators Prohibition fortified with a Reason That he would have it left to his Children lawfully begotten but the Law is otherwise and ratifies the Sons Obligation or Alienation thereof to A. B. Because it was a necessary expedient and not of his voluntary choice the Law touching such Prohibitions extending only to voluntary not to necessary Alienations 49. A. B. makes his Will and therein Devises certain Lands and Tenements to his five Sons by Name under this Proviso or Condition That if either of them Alienated his part thereof to a Stranger that then that part so Alienated contrary to his Will should be and enure to the Crown for ever and dyes After Two of the Sons sell their parts to One of the other Three their Collegatories and dye He after makes A. B. a stranger his Executor gives him the said Two purchased parts and dyes The Question is whether the said Two parts belong to A. B. or to the surviving Collegataries that did not Alienate or to the Crown It is Resolved that they belong to A. B. and not to the Collegataries nor to the Crown Not to the Collegataries because the person of A. B. the stranger is not here to be considered but the person of the Purchaser who Devised it to him who according to the Testators mind was one of those to whom the Testator permitted or tacitely implyed a Sale might be made And it is only they not others that are prohibited to sell their own parts and therefore the parts which they purchase are not as those which they hold immediately from the Testator prohibited by the express command or tacite intent of the Deceased to be alienated to strangers Nor to the Crown because the Condition of the Devise viz. Alienation contrary to the Testators meaning without which the Crown is not entitled thereto is not existent for that the parts meant by the Testator were sold to their Collegatary and not to a Stranger to whom indeed they were afterwards Devised but not in derogation to the Testators sense and meaning because not the person of the Stranger Executor to the Purchaser as aforesaid but the person of the Purchaser himself is chiefly to be considered 50. Note That in a Bequest of Legacies the word or is not much a Note of Disjunction as of Augmentation comprehending both because in Disposition of Legacies the Law expatiates the Interpretation as far as it may have any consistency with the Testators mind and meaning and will take its measures from the utmost Latitude of his intentions For which reason if the Testator saith I give my City-house or my Countrey Farm to my Daughter
Condition of Superstitious Vses vests the Land in the Crown Ibid § 11. What Provision of Law in Case the Legatary die before Condition broken or the time for performance be come p. 281 § 11. Conditions Testamentary in reference to Marriage p 27 c. Conditions directly against Marriage are unlawfull with the Limitations thereof p. 342 343 § 25. Condition of Marriage is annexable to a Legacy or Devise but an unlawfull Condition thereof is void p 279 § 1. Condition of Marriage with the consent of another doth oblige the Legatary to Marry but not to have such consent Ibid § 2. Condition of Marriage with the Advice of another obligeth the Legatary to Ask it but not to follow it Ibid § 3. What in case the Legatary were Married before Ibid. § 4. p 316 § 18. Though a Condition against Marrige be void yet the Legacy is not p 280 § 5. The Canon Laws Distinction in case of Conditions directly contrary to Marriage p 280 § 9. Conditions of Non-alienation are intended only of voluntary Alienations p 438 § 17. Conditions necessary are as no Conditions Ibid § 18. Conditions implyed by Relative Pronouns Ibid § 19. Positions in Law touching Conditions p 438 § 16 to 26. Conditional Testaments how and when such p 22 23. The several kinds thereof p 23 to 27. Confidence in a Feme Covert is not transferrable to the Husband upon her death p 236. infin Consent or Delivery by an Executor requisite to a Legacy or Divise p 440 § 39 c. Corne standing is Devisable where the Land it self may not be p 225 § 2. p 304 § 13. Corporations or any Member thereof may not Devise the Land they have in right of their Corporations p 225 § 3. Costs not payable by an Executor Non-suited on Judgment against him p 104 § ult p 110 § ult p 117 § ult Given in Chancery against a Testator doth not charge his Executor p 108 § 6. Coverture nulls a Devise it may revive by a new Publication after the Husbands death p 289 § 9. Courtelage passeth by the Devise of a House p 237 in pr. Creditors made Executors p 74 to 77 They may pay themselves first the Limitations of that Rule p 75 76 § 3. Custome of London in reference to Executors or Administrators touching Debts by simple Contract p 116 117 § ult D. Deaf and Dumb naturally not Intestable absolutely p 19. Whether they may make a Devise of Lands p 226 § 3. Death of the Legatary before the existence of a possible Condition annexed to his Legacy insignificates the same p 325 § 13. Debet Detinet in what Cases And in what Cases in the Detinet only p 113 § 7 p 157 § ult Debts Bequeathed p 321 322 c. p 440 § 36 40 41. p 446 § 95. What Debts not Devisable p 440 § 38. Debts and Things in Action are Devisable by Will some only excepted p 321 § 1. Debts Bequeathed how extinguished or not p 324 § 11. Debt Bequeathed twice is due but once p 325 § 12. Debt Bequeathed to Joint-Debtors Ibid Debt Bequeathed the Executor is discharged by Assigning the Bond to the Legatary p 326. § 17. Debt is where the Bond is but upon a Contract it follows the Person p 157 § ult Where Debt upon a simple Contract may by the Custom be paid by an Administrator as soon as a Debt upon a Bond. p 116 117. § ult Debt is Assets though the Debtor be Administrator p 76 § 4. That can be no Debt in the Executor which was none in the Testator p. 107 § 6. Debt lieth not against an Executor upon a simple Contract of the Testator but an Action of the Case only p. 107 108 § 6 p 109 115 § ult It lyeth against them for Rent of Land Leased to their Testator p 115 § ult Debts by Bonds and Specialties are not Comprized in a general Legacy p 327 § 19. Whether Debts Bonds and Specialties are Comprized under the Notion of Moveables or Immoveables p 310 § 10. The Executors Method in paying of Debts p 142 c. Debts upon Record to be first satisfied p 108 § 7. In what case a Statute may be paid before a Judgment p. 137 138 § ult Debts to be paid before Legacies p 142 § 1. The Reason thereof in Law p. 440 § 45. What Debts to the Crown have Priority to the Subjects Debts p 143 § 3. Executors may satisfie their own Debts before any other of equal quality and degree p 142 § 2. What the Law is in Case of Debts for Rent upon Leases p 146 147 § 9. Declaration precedent Derogatory to the subsequent doth prevail against it p 302 § 4. An Exception to that Rule Ibid. Deed of Purchase Devised what it signifies p 448 § 103. Delegates or Judges Delegate whether they may grant Letters of Administration p 158 § ult Demonstrations false destroy not Legacies p 210 § 3 p 441 § 48. Vnderstand it of False Necessary not False Superfluous Demonstrations p 213 § 1. The difference between that and a False Cause p 214 § 2. Designation how a Legacy shall be paid makes it not Conditional nor Questionable whether it shall be paid p 315 § 14. Detinue in what Cases it lies or not p 102 § 7 § ult p 107 § 5. How it lies for an Infant-Executor against an Administrator Durante Minoritate p 162 § ult Devastavit What and in how many ways it may be in what Cases it lies the Method of proceeding therein and Execution thereupon p 134 c. Devise what p 200 § 1. Its Requisites p 202 § 2. In what Court properly recoverable p 204 § 4. Refused to be Delivered by Executors what remedy Ibid. What words or expressions sufficient for a Devise p 209 c. Wherein a Devise of Lands differs from a Bequest of Goods p. 4 § 2. Devise of a thing not in rerum Natura at the Testators death void p 292 § 20. It is as inferrable from the Testators Intention as intelligible by his expression p 295 § 36. An Omission of what the Testator said he would make a description of doth not null a Devise p. 296 § 37. The same thing twice Conditionally Devised by two Testators to several persons how or in what Case good to either or not p 297 § 41. Devisable what p. 221 c. p 311. § 15. Whether a Testator may Bequeath what is not his own p 221. § 2. What things in particular may be Devised Ibid. § 1. How the Testator may Bequeath what is his Executors p. 222 223. § 3. A Bequest to one of what was his own before Ibid. § 4. The difference between the Common and Civil Law in this point of Devising what is another mans Ibid. § 5. Goods in Joint-Tenancy are not Devisable p. 223. § 6. Devisee or Devisor who may be such p. 205 c. Deuisee must be capable of
the Devise at the time of the Testators Death Ibid. Devisee and Executor when the same person is both by which shall he take p. 102. § 7. Devisees joyned in the thing Devised but disjoyned in the manner of Devising How and in what case is the Devise to be apportioned p. 297. § 43. Distress or power of distraining Devised how it makes an Estate Taile p. 250. § 13. Distribution of Intestates the Law now in force touching the same p. 168 169. § 3. Drunk Dead-drunk such are dead also in Law as to any Testability Durante Bestialitate p. 13. § 5. Dubious Cases Rules in Law touching the same p. 437. § 1 to 8. p. 446. § 9. In doubtful Cases the Legatary hath the Election p. 331. § 13. They shall be construed in favour of the Legatary Ibid. In all doubtful Cases relating to the Quantity of a Legacy the least only is due p. 319. § 30. E. Ecclesiastical Persons may not Devise the Lands or Goods which they have in right of their Churches p. 225. § 3. Elections the Law touching the same p. 293. § 24. Two Elections in one Devise in such case the Legatary shall have the first the Executor the second p. Ibid. § 26. Election in Executors to Accept or Refuse the Executorship p. 91 c. The Equity of Election to be regulated by the Testators intention p. 290. § 13. Election in a Debtor how it may frustrate a Legacy p. 326. § 18. Election in point of Legacies to whom it belongs whether to the Executor or to the Legatary p. 328 c. p. 442. § 66 to 70. p. 444. § 81. The Election belongs to him to whom the Testator directs the Executive power of the Legacy p. 328. § 2. p. 329. § 4. p. 330. § 8. Election doth arise from tollerable uncertainties p. 329. § 3. It refers as well to the thing it self Bequeathed as to the Legatary or Executor p. Ibid. § 5. It is sometimes directed by the Law as well as by the Testator 〈…〉 p. 330. § 6. The Law in that case 〈…〉 Ibid. Whether 〈…〉 Election in the Legatary be transmissable to his Executor p. 332. § 14. Enmity in the Legatary against the Testator how it voids the Legacy p. 341. § 22. Entaile by a Devise may by the same words be a Fee-simple by Deed. p. 249. § 6. In what case the younger Son may have a pure Fee-simple and the Elder but an Estate-tail by the same words in a Devise p. Ibid. § 7. Cases in Law touching Devises of Land Entailed p. 247 c. How they may be devested from one to another by Devise Ibid. § 1. The several ways of Entail by Devise p. 248 249. § 4 6 8 9. How with Cross Remainders p. 250. § 11. How with a Remainder Implyed Ibid. § 12. How of Rent as well as Land by way of Devise Ibid. § 13. How extending only to some not all the Lands therewith Devised Ibid. The difference between Devises by Will and Grants by Deed in point of Entail p. 248. § 3. Entrie upon a Lease though before Probate vests the Term in the Executor and if he die Intestate in his Administrator p. 96. § 6. Equally to be divided Whether those words make a Tenancy in Common or Joint-Tenancy p. 242. § Error or Mistake in the Testator in what case it may prejudice the Legatary or not p. 295. § 35. If it be only in the Scituation of the Land Devised it shall not prejudice the Devise p. 298. § 47. Estimate or the wrong Estimate of a Legacy by the Testator alters not the Condition thereof p. 292. § 21. Nor may an Executor exceed it to the Legataries prejudice Ibid. § 22. Exceptions frivolous and of a thing that is not no prejudice to a Deuisee p. 296. § 40. Excommunicated Persons in what sense Intestable or not p. 22. § 8. Whether incapable of a Legacy or not p. 26. § 2. Execution for an Administrators Administrator in Dammages upon Trespass p. 105. § ult Execution de bonis proprijs how to proceed therein p. 131 132. § 8. Execution after Administration Revoked void in Law p. 160. § ult Executor how Constituted p. 49 50. The several ways thereof p. 53. What words sufficient whereby to Constitute Executors p. 54. § 2. p. 126. § ult Who may not be Executors p. 55 56. The power of an Executors Executor p. 56 57 c. The Executors Right exclusively to the Heirs p. 97 98 c. Their Interest and Possession p. 88 c. How it differs from that which they have in their own Goods p. 89 § 2. They cannot Bequeath what they have as Executors Ibid. § 3. What Acts may be done by them before Probate p. 94 c. What Actions they may maintain before Probate of the Will p. 95 § 4. In what cases they may retain Goods of the Testators to satisfie their own Debts p. 96 § 7. In what Court they ought to Sue p 102 § 6. They are Suable by Creditors notwithstanding Imbezilment of the Testators Goods p 105 106 § 1. How liable for their Testators breach of Covenant Ibid § 3. In what cases liable or not to pay the Testators Debts of their own proper Money or may become chargeable de bonis proprijs Ibid § 7 p 108 109 113 116 § ult Though not bound by Name yet they are chargeable with the Testators Obligations p 107 § 5 They are not chargeable on a simple Contract of the Testators p 128 § 1. They are liable for no more than comes to their hands p 129 130 § 4. In what case the Executors of a Substituted Devisee may not claim Lands Devised under Limitations p 267 § 3. An Executor may pleasure his Friend by Confessing the Action of one and Traversing it with another p 149 § ult In what sense an Executor Revoked may be said to be Revived p 34 § 2. An Executors Executor p 56 c. Executor de son tort what and what Acts may make him such p 59 c. How far he is chargeable or not p. 60 61 § 2. He shall take no Advantage thereby Ibid. He may not as other Executors retain Goods to pay himself p 63 § 5 c. how an Executorship may be in several respects p 50 51. How the Executorship is to be performed when a King is made Executor p. 50 § 2. F. Fee-simple in what Cases and by what Words it passeth by Will p 240 to 246. It may pass by Will several other ways than it can by Deed. Ibid § 1. It passeth by Will only by leaving Lands to ones pleasure or discretion p 238 in prin It passeth by Devising a power to Sell. p 241 § 2. By the Consideration of any payment Ibid By Devising to a Corporation for life p 242 § 5. By Implication only of the word Heirs p 241 242 § 3. By Generall words p 243 § 8. By the word Paying p 243 244 §
10. By Devising the Bents § Ibid. By a Generall Implication p 244 § 11. Whether Fee-simple passeth in a Will by the Word Assigns without the Word Forever p. 242. § 5. Fee-simple Devised to one is not Devisable to another by the same Will p. 243. § 9. Fee and not Leases and Leases and not Fee in what Cases and by what words pass by a Devise p. 244. § 12. Fee of Land Devised to one the Rent thereof to another what the Civil Law in that Case p. 295. § 34. The Devise of a House though by the word Fee-simple thereof may pass only an Estate for life p. 255 256. § ult Felo dese Intestable as to Goods and Chattels not so as to his Lands p. 226. § 3. Felons under Attainder are Intestable p. Ibid § 3. They are not Intestable before Conviction p 20 21. § 2. They are Incepable of a Legacy p 206. § 2. The Qualifications thereof Ibid. Feme Covert she may without her Husbands consent make an Executor of those Goods whereof her self is Executrix or which she hath as Executrix p 226. § 3. Yet she cannot Devise them by Will Ibid. Being Executrix and under that Notion receiving Money she may release without her Husband p. 71. § ult Whether she may be a Legatary to her own Husband p 208. § 3. She may not Devise Lands to her own Husband nor unto others either with or without his consent p 205. § 1. 226. § 3. vid. Women Covert Feme Sole her Devise to him whom she after marries is void p 281 282. § 13. Field if Devised the Edifice thereon passeth therewith p. 295. § 33. Fraud or Covin in an Executors Payments shall not prejudice the Creditors p. 147. § 11. Fraudulent Recoveries no Barre to Creditors p 108. § 7. p. 113. § ult Freehold Devised not Cognizable before the Ordinary p 205. § 4. G. Garden passeth by the Devise of a House p 237. in prin Gavelkind Lands Devisable by Custom p 224. § 1. An Estate-Tail thereof Devised p 251. § ult Goods What shall pass by a Devise of all Goods Chattels Moveables and Immoveables p 289. § 7. Goods in generall Devised what shall pass under that Notion p 306 307. § 1. Goods in Common Devised by Implication p 302. § 3. Grantees may be Devisees p 226. § 4. Ground Devised the Edifice thereon passeth thereby although Erected after the Devise made p 297. § 42. The Ground whereon a House stood which is after burnt belongs to the Devisee or Legatary p 304. § 14. H. Habendum how to be construed in a doubtfull Case of Devises p 243. § 7. Have or the word I have in what case it shall be taken in the Present Tense p. 295 § ult Heire the different Acceptations of that word in the Civil and Common Law p 202 § 1. In what case he may enter upon Lands Devised to be Sold. p. 139. § 3. In what case he and not the Executor shall have the mean Profits of Land Devised to be Sold. p 273 § 3. He shall take the Advantage of a Condition broken that is annexed to a Devise of Land Ibid § 2. A Devise to one and his Heir in the Singular Number is but a Devise for Life p 253 § 3. The Heirs Rights exclusively to the Executons p 83. In what case Heirs shall not take by a Devise though they are therein mentioned p 238 239 § ult In what case a Devise by that Word Heirs shall yet go to the Executors p 257 258 § 1 3. Hereticks in what Sense Testable or not p. 21 § 3. They are Incapable of a Legacy p 206. § 2. The Qualifications thereof Ibid Horse one Devised to two Persons how the Divident to be apportioned p. 304. § 15. By a Bequest of Horses shall Mares pass if the Testator had no Horses p 303. § 10. hospital-Hospital-Lands or their Rents-Arreare not Deviseable p 225. § 3. House Devised when the Testator had none or many or burnt or ruin'd pull'd down demolished or re-edisied The Law in such cases p 294 § 27 p 296 § 39. House Devised with all things therein how that shall be understood p. Ibid. § 31 p 302 303 § 7. The Ground whereon stood a House Devised and after burnt is the Legataries p 304. § 14. Houses are Devisable under the Notion of Lands p 224. § 2. p. 301. § ult Two Houses and but one Stable betwixt them with which House Devised shall the Stable pass p 294. § 30. Husband being neither Executor nor Administrator to his Wife is not liable for her Debts after her decease p. 130. § 5. J. Ideots Intestable the Qualifications thereof p. 12 13 § 3 6 p 14 § ult Jewels Bequeathed what pass under that Notion or not in a Devise p. 306 § ult In what case they are not to be put into the Inventory p. 99. § ult If in what cases that word amounts not to a Condition p. 216 § ult Implication sufficient whereby to pass a Legacy or Devise p. 235 in fin Whether Legacies may pass by an Implication of a contrary Condition p. 211 § 5. Impertinences destroy not Legacies p. 209 210 § 2. Impossibilities only seemingly such no prejudice to a Legacy p. 304 305 § 16. What Impossibility destroys a Legacy p 439 § 35. Impossibility imposed on the Condition of a Legacy voids the Condition but not the Legacy p 325 § 13. Incapacity in the Legatary how many ways it may happen p. 341 § 22. Incestuous Persons how far Testable or not p. 21 § 5. Infant incapable of Devising p. 289 § 10. Whether a new Publication after Minority gives life to a Devise that had none before Ibid. Infant under the Age of 21 Years may not Devise Land p. 226 § 3. Infant in the Womb whether capable of being a Legatary or Devisee p. 208 § 3. Infant-Executor at what Age he may Administer p. 67 § 2. What his power is Ibid. § 3. He is bound by his own Release if he receive the Money p. 71 § 5. His Release not good p. 68 § 5. At what Age Administration granted during his Minority shall cease p. 67 § 2 p 69 § ult His Release without consideration void Ibid. In what case he may have an Action of Detinue but not of Accompt p 71. § fin Interpretation of a Devise ought to be with the fairest advantage for the Devisee p 290 § 15. Several Rules in Law touching the Interpretation of Testaments and Devises p. 437 c. Intestables their several kinds p. 10. Inventory whether it may be made by an Executor before Probate of the Will p. 95 § 5. Within what time it is to be Exhibited p. 97 98 § 1. How and wherefore it is to be made and what to be inserted therein p Ibid. § 2 3 Inventories may be over-ruled by a Jury p. 107 § 4. Joynt-Executors must be all joyn'd in Suit p. 108 § 6. vid. Co-executors
granted p. 155 158 159 c. Whether they are to be granted in the Province where the Intestate dyed or in that where his Goods and Chattels were when he dyed p. 158. § ult Being once granted they are not Revokeable at the Ordinaries meer Will and Pleasure p. 165. § 3. He that hath them cum Testamento annexo is obliged to pay the Legacies as far forth as an Executor p. 445. § 87. How there may be two Letters of Administration at once in being and both good p 69 70. § ult They refer to the time of the Intestates death and not only to the time of granting them p. 96. § 6. Letters ad Colligendum what the Law is in case thereof p. 153. § 4. In what cases they are to be granted p. 93. § ult They qualifie for the Sale of Perishable Goods p. 69. § ult Libellers incapable of a Legacy p. 206. § 2. Life or Lives in Reversion Devises of such Estates p. 254 § 7 8 9. Estates only for Life Devised p. 252 c. A Devise to one not saying How long is a Devise only for Life Ibid. § 1. Several Instances of Devises only for Life p. 253. § 4 5. A Devise for Life only by Implication p. Ibid. § 5. Limitation the Devise of a void Limitation is a void Devise p. 262. § 4. Livelyhood by a Devise thereof and by that word Lands of Inheritance do pass p. 232. § ult Loan of Money Bequeathed at under-interest what Security in that case requirable of the Legatary p. 326. § 16. M. Madness or Insanity of Mind disqualifies for Testamentification p. 11 12. § 2. How it may Legally be proved p. Ibid. Marriage-Conditions how far Matrimonial Conditions may be lawfull or not p. 27. vid. Conditions Marble Bequeathed how to be understood in case Statutes made therewith are Bequeathed p. 303. § 9. Mares pass by a Bequest of Horses not so e Contra. p. 303. § 10. p. 441. § 53 56. Materials Bequeathed do not pass the Ship that is after therewith built nor doth a Ship Bequeathed pass the Materials that are after ript therefrom p. 303. § 8. Meaning Mind or Words of the Testator how to be interpreted p 437 438. § 8 to 15. p. 439. § 27 to 31. Mind or Meaning of the Testator any way expressed sufficient for a Legacy p. 209. § 1. p. 211. § 6. Military Testaments their Priviledge p. 7. § 2. Mill joyning to a House in what case it shall pass by a Devise of the House p. 294. § 28. Minors Male or Female at what ages and of what things they may make their Testaments p 11. § 1. Mistake in the Legataries Election admits no Rectification or any further determination p 331. § 12. Modus Conditio the difference between them in point of Devising p. 215 216. § 4. Moity or the one half is implyed Legally when a part not expressing what part is Devised indefinitely p 293. § 23. By a Moity of Goods Bequeathed doth pass so much as was a Moity at the Testators death p. 282. § 15. Money whether Comprized under the Notion of Moveables or Immoveables p. 309 310. § 9 12. By what words it will pass or not in a Devise p. 447. § 98. Divers Law Cases touching Money-Legacies p. 312 to 320. p. 323 to 326. Mortgage-Money to whom payable whether to the Heir or to the Executor p. 90. § 2. It is Devisable though before the day of Payment p. 288. § 3. Mortgages redeemed by Executors are Assets in their hands p 120. § 3 Mortuary what when where how much and in what cases Payable p. 148. § 12. Mothers whether they are next of Kin to their Children p. 174. § 1. Moveables or Immoveables Devised what shall pass under that Notion p 306. § 1 to 13. Whether Leases Rents Bonds or Specialties pass by a Devise of Moveables p 288. § 6. Mute at Tryall whether Testable and how far p 226. § 3. N. Name of the Legatary not necessary where there is other sufficient description of the person p 227. § 4. Name mistaken in what case no prejudice Ibid. Name lost by Marriage in what case prejudiciall p 235 237. § ult The force and energy of Names in Devises of Land p. 297. § 44. Nomine poenae A Legacy so Devised and failure made by the Executor the Legatary may take either the Legacy or the Penalty but not both p 293. § 25. Notes taken from the Testator and written suffice for a Devise of Land p. 6. § 8. Nuncupative Testament what p 5. § 6 Not good for Land Ibid p 228. § 5 O. Obligation made after a Contract dissolves it p 133. § 10. what passeth by a Devise of a Bond or Obligation p 442. § 64. being Devised they must be Sued in the Executors not the Legataries Name Ibid. 321. § 1. Obligations or Chattels Reall in Right of the Wife as Executrix not Devisable by the Husband p 288. § 4. Office for Term of years and Saleable is Devisable p 309. § 7 computed among the Immoveables Ibid. But a Registers Office among the Moveables § Ibid. Onus Probandi on whom the Law casts it in case of Dubiety in a Legataries claim p. 440. § 37. Or how that word is frequently understood for And in Devises p 299. § 50. How it shall be taken for And to Create an Estate Taile by Devise p 250. § 10. Ordinary he may call Executors and Administrators to an Accompt p 150. § 1. p. 168. § 3. Whether he hath power to take Bond of an Administrator to distribute c. p 161. § ult Whether he may compel the Administrator to give Filiall Portions p. 168. § 2 3. In what case the Ordinary is Suable for the Debts of the deceased p 130. § 6. Ought Of what force that word is in some cases of Devises p 326. § 14. Out-lawed Persons in what Sense Testable or not p 21 22. § 8 9 10. They are incapable of a Legacy p. 207. § 2. The Qualifications thereof Ibid. If Out-lawed only in a Persosonall Action they are Testable as to Lands but Intestable as to their Goods and Chattels p. 226. § 3. Out-lawed Executors may have their Actions p. 101 § 4. Whether Out-lawry in the Testator be any Plea for his Executor in Barre of Debt p. 110 111. § ult Oxe Bequeathed in what case the Legatary cannot pretend so much as to his Hide p 305. § 18. P. Parents whether they be next of Kin to their Children p. 174. § 1. Parish Church to be repaired and Money for that end Bequeathed without expressing how much not void for uncertainties p. 315 316 § 15. Money Bequeathed indefinitely by the Testator to his Parish Church he having Two Parish Churches to which of them is it due p. 442. § 70. Devises to a Parish Church p 444. § 82 83. Pars pro toto in what Sense Legally so p. 447 448. § 100. Part Devised but what
the Executor of the surviving Executor p 276 § 13. It may not be made by Executors refusing to Administer p Ibid § 14. One Executor refusing the other may Sell but not to the refusing Executor p 139 140 § 5 p 275 276 § 11. In what case void if it be made only by some of the Executors p 277 § 16. The difference between an Authority and an Interest in Executors as to the Sale of Lands Devised to be Sold. p 139 § 3. In what other cases it may be made by some without the other Executors p 139. § 4. In what case it may be made by the surviving Executors p Ibid § 5 § ult Whether a Sale of Goods by an Administrator pendente Lite be good or not p 115 § ult p 116 § ult p 166 § ult Scire Facias in what cases it lies or not p. 102 § ult p 108 to 112 § ult Seale Expedient not Necessary to a Testament p. 2. Sealing and Subscription not necessary to a Devise of Land p. 228 § 5. Security in what case requirable by an Executor from the Legatary p. 319 § 29 p. 326 § 16. Self-Murderers Intestable p. 21 § 7. The Limitations thereof Ibid. vid. Felo de se Semini suo Sanguini suo Devised their difference in Point of Entail p. 249 § 4. Shall how that word is taken for Should in the Devise of a Term. p. 256 257 § 1. Sheep Flock of Sheep Cattle Herd of Cattle Devised the Law in case of increase or decrease thereof p. 304 § 14 p 441 § 58 p 448 § 102. Shop Devised Chamber Devised the difference of Legal Constructions therein p 295 § 32. Signs Becks or Nodds whether Legacies may be Bequeathed by such only p. 210 § 4. Silver Bequeathed what passeth by that word and under that Notion p 442 § 64. Sodomites Intestable p 21 § 6. Incapable of a Legacy p 206 § 2. Study or Library Bequeathed the Books therein not the Place where they are are thereby to be understood p 302 § 6 § 59. Subscription of the Testators name not absolutely necessary to a Tement p 4 § 2. Substitutions of Executors and by Degrees p 52 53. Succession the Praetorian Law therein p 167 168 § 1. The Method of Succession by the Laws of this Realm p. 169 170 § 1. How the Civil Law understands it p 170 § 2. Succession in the Right Line descendent p. 172 c. In what cases to be computed in Stirpes not in Capita p 172 173 § 2. How the Succession goes by the Civil Law and how by the Common Law in case of Semisanguinity or the Half blood p 173 174 § ult Succession in the Right Line Ascendent p 174 c. The Method thereof by the Civil Law p. Ibid. § 2. How it stands when Collateralls concur with those of that Line p. 175 176. § 3. Whether by the Civil Law Brothers and their Children may Concur with their Parents in the Succession p 176 § 4. Succession in the Line Transversall or Collaterall p 177 c. Two fold Ibid § 1. Regularly the whole Blood is ever in the Succession to be preferred in the Transversall or Collaterall Line p 177 178 § 2. How the Succession runs in case of no Children but Kindred only by the Ascendent and Collaterall Line p 179 180 § 5. T. Tenant in Tail may not by Devise be Barred from Alienating by a Common Recovery p. 248 § 2. The difference between him and Tenant in Fee as to their power in Devising p 288 § 1. Testament the true definition thereof p 1. Six Legal Inferences thence p 2. It properly refers to Chattels p. 3. what Witnesses necessary to prove a Testament Ibid. § 2 It must be in Writing where Lands are Devised p 4 § 2 Of Testaments Written and Nuncupative p 4. How many ways Testaments become void p 29. Who may die with two Testaments and both good p 7. § 2. In what case the latter Testament shall not null the former Ibid. Testaments to be more favourably construed than Deeds p 231. § 5 Whether the Testament must be shewn in Court in Actions brought by Executors p. 103. § ult Testate and Intestate how the same person in divers respects may die both p 35. § 3. Testators and Executors Correlatives as to Chattels p. 1. The Testators Will is his own Law p 302. § 4. Traytors Intestable from the time of the Crime committed p. 226. § 3. p. 20. § 1. The Limitations thereof Ibid. They are incapable of a Legacy p. 206. § 2. The Qualifications thereof Ibid Trees standing not Devisable where the Land is not p. 225. § 2. Trespass Maintainable by an Administrator or by an Executors Executor p. 104. § ult Twice Bequeathing the same thing to the same person when it may Duplicate the Legacy or not p. 440 441 § 46. V. Villaines in what sense they are Intestable p 14. § 1. Uncertain persons not capable of a Legacy or Devise p. 206. § 2. Uncertaintie destroys the Legacy p. 227. § 4. What Constructions of Law to avoid Vncertainties p. 293. § 24. p. 443. § 75. Universall Successor Naked Executor and Particular Legatary the difference between these Three p. 289. § 8. Void Testaments Originally such or otherwise p 29 c. Void or Voidable Legacies p. 332 c. The true Reason why Testaments and the Legacies therein given so often prove ineffectual Ibid. § 1. The severall ways whereby they may become Void or voidable p. 333. § 2. How void originally p. Ibid. 334. § 3 4. How by a Change or Alteration of the Property Substance or Form of the Thing Bequeathed or of the mind of the Devisor p. 334. § 5. How by an Incapability in the Legatary p. 334. § 6. p. 341. § 22. By Fraud Circumventing the Testator p. 334 335. § 7. By Fear terrifying him p. 335. § 8. By Flattery Beguiling him p. Ibid. § 9. By Error in the Name Appellative or Substance of the Thing Devised p. 335 c. § 10. Or in the Person of the Legatary Ibid. Or in his Quality if that were the Finall Cause of the Legacy Ibid. Or by Vncertainty p. 337 § 11. By making of a latter Will p. 338 § 12 By a Revocation in Fact or Law Ibid. By Ademption p. 338 § 13 to 16 19. By Translation p 340 § 17. Which is Four fold p. Ibid p 341 § 18 21. Or by Falsity charged on the Testament by the Legatary p. 342. § 24. Or by Concealment or Cancellation thereof p § Ibid. By the Legataries death precedent to the Testators p. 342 § 25. Or before Condition performed or time of Payment be come Ibid. Or by the Legataries own Waiver or Refusall p. 443 § 26. Or by the total loss and destruction of the Thing it self Bequeathed Ibid. Or by the Testators Alienation thereof not Revivable without a new and Subsequent Publication p.
440. § 43. It may be void also upon the Legataries non-performance of some duty enjoyned him by the Testator p. 445. § 84. Use or Occupation of a thing is Devisable for any time but the thing it self not Devisable for any time less than Forever p. 301. § 1. What Uses are Devisable p 288. § 2. Usurers Manifest and Notorious not capable of being Legataries p 206. § 2. W. Wages Servants Wages of what kind payable by Executors p. 106. § 2. They are payable before Legacies p. 147. § 10. Warranty cannot be made by Will p. 230. § 3. Wast what acts do amount to a Wast how many ways it may be Committed and how it shall charge the Executor de bonis proprijs p. 135 c. § 2 3 4. Wast Committed by one Co-executor shall not charge another Ibid. § 4. vid. Devastavit Wedge of Silver Bequeathed the Vessel after made therewith shall pass thereby p 303. § 8. A limitation thereof Ibid. Wife her Advantage by the Civil Law if she lives and dies in her Widowhood p 280 281. § 10. If she plays the Whore she looses her Legacy p 341. § 22. Two Wives in Being at once the first only shall have the Legacy p 227. § 4. Will or Last-will what relating properly to Land p. 2. § 2. Written without the Testators precedent Order or Subsequent Affirmance void p. 237. § ult The Will of the Testator is a Law to himself p. 302. § 4. If subordinated to the Absolute Will of his Executor all Legacies therein Bequeathed are void p. 312 313. § 3 4. A Testator by making his Executors Will Absolute makes his own Will insignificant Ibid. p 440 § 44. The Testators Will is Ambulatory to the other world p. 341. § 22. Will Tacite and Implicite in the Testator sufficient to null a Legacy not an Executorship so easily p. 341 § 23. Wills are capable of Devising what Grants and Deeds are not of Conveying Or a Man may Devise by Will an Interest which he could not Convey by any Act Executed in his life time p 258 § 8. Wines Bequeathed a Bequest thereof contains the Vessels which contain them p. 448 § 104. Woman Covert in what Sense Testable or not p. 15 to 19. Whether the Husband may Compel her to Accept the Executrixship Or whether she may accept it without or against his Consent p 72 § 1 2 5. Or whether he may make himself her Executor vid. Feme-Covert Wood what passeth by a Devise thereof or by that Name p 442 § 62. Wooll Bequeathed what is to be understood thereby p 441 § 59 60. Words of the Testator how to be Construed p 437 438 § 8 to 16 p 439 § 27 to 31 § 34. They are by Law ever Accommodated to the Testators mind and meaning p. 255 § 11. Any Words plainly Declaratory of the Testators Intention may serve for a Devise or Testamentary Disposition p. 297 298 § 45 p 317 § 21 22 p 445 § 85 86. Words Comprehensive are not to be strained beyond a Legal Rationality p. 290 291 § 16. Generall Words convey more by Implication than Expression p. 302 § 5. Words meerly Enunciative signifie little or nothing p. 316. § 17. How the Copulative word And shall be taken for That is p. 308 § 3. How the Disjunctive word Or in Devises is frequently understood for the Conjunctive word And. p. 299 § 50. How the Word Or shall be taken for And to Create an Estate-Tail by Devise 250 § 10. How the word Shall is to be taken for Should in the Devise of a Term. p 256 257 § 1. How the Word All is to be understood in certain Legacies p 311 § 14. In what Case the Word If doth not amount to a Condition p 216 § 5. How the words If Untill So long as do vary the Sense p 242 243 § 72. What the Words More than this do signifie in a Devise p 319 § 27. Of what force the Word Ought may be in some Cases p 326 § 14. In what Cases the Words Have or I have shall be taken in the Present Tense p 259 § ult In what case the Word Paying shall be Construed only as a Limitation and not as a Condition p 266 267 § 5. What shall pass in a Devise by the Word Appurtenances p 274 § 6 Writings which concern the Inheritance do belong not to the Executor but to the Heir p. 82. § 6. FINIS ERRATA Page Line Errors Rectified 080 32 And dies And D. dies 065 22 Administrator Executor 157 10 To By 232 11 Devise Dower 280 45 His Her 286 09 Of After 290 43 C. D. C. B. 291 26 C. D. C. B. 295 27 Issuers Issues 324 11 No Not 327 18 To Do 302 42 She He 334 39 Are All 340 11 It Its 449 05 Society Saciety 229 20 The words Without Surrender Are omitted 292 11 Death 436 42 Away a L. 1. ff de testa b Mant. de con ult vol. lib. 1. tit 4. n. 10. c Ibid. tit 8. d l. 10. ff de jur Cod. Plow Com. 185. in Woodward Darcyes Case e Inst de haered l. 1. l. 2. ff de Vulg. Substit l. haered palam ff de Testam Broo. tit Execut. 20. Six Inferences from the definition of a Testament Such a Testament as whereto the appointment of an Executor is essential doth properly refer to Goods and Chattels for Lands by vertue of the Statute may be devised by a Will in writing where no Executor is named f Sheph. Epit. cap. 155. g D. D. post glos in dict l. 1. ff de testa h Mantic. ubi sup tit 5. i Aul. Gel. lib. 6 c. â—2 to Serv. Sulp. Sealing not absolutely necessary to a Will k Offic. ex cap. 2. l Ibid. a L. hac consult C. de Testa b l. 1. ff de iniust rupt irrit testa c Myns Inst de testa ordin §. fin d Mant. ubi sup l. 1. tit 57. a Tract de Rep. Angl. lib. 3. cap. 7. Lynw. Const in cap. Stat. verb. probatis tit de testa lib. 3. Bract. de Leg. Consuet Angl. l. 2. c. 25. b Mant. ubi sup lib. 6. tit 3. nu 9. in fine c St. H. 8. an 32. cap. 1. a Myns Inst de testa ord §. Sed cum paulat b Myns ibid. §. fin c L. hac consult Cod. de Testa glos ibid. d Auth. non observato Cod. de Testa DD. ibid. e Offic. Exec. cap. 2. f 6 H. 6. Dyer 32. g Offic. Exec. ubi supra h Swinb part 1. §. 11. n. 5. i Stat. H. 8. an 32. c. 1. k Dyer iâ— Ca 〈…〉 inter Sack vile Browne l Ibid. sup ult vol. cujusdam Hanton m Inst de test ordinan §. fin l. heredes ff de testa n l. hac Consultat §. per nuncupat C. de testa o Stat. 14 H. 6. 5. 5 H. 5. 〈◊〉 M. 15. â—6
the Testator though the same be not ingrossed at large or in form of Law until after the Testators death 6. Testaments are called Nuncupative when the Testator without any writing doth declare his Will before a sufficient number of Witnesses and such Nuncupative Will is of as great force and efficacy except for Lands Tenements and Hereditaments as any written Testament Yea this verbal oral or Nuncupative Will being after the Testators death reduced to writing and having the Court Seal affixed thereunto is of as good validity touching the disposal of Goods and Chattels as if it had been written in the Testators life-time 7. Although many Legacies be made and written in a Will and many things expressed to be done yet if no Executor be named in the writing only A. and B. by word of mouth appointed to be Executors this shall not amount to a Will in writing but to a Nuncupative will only because one essential part of the Will viz. the appointing of an Executor is omitted out of the writing Nay the appointing of him Executor who is named in such a Note left with C. D. is no sufficient making of an Executor at all Nor is the appointing of any one by a doubtfull and uncertain Name a sufficient making either of an Executor or Legatary unless some other sufficient circumstance doth make it plainly appear whom the Testator meant so tender and cautious is the Law of fixing the interest of any upon meer doubts and uncertainties 8. A man took Notes of a Will of one who lay sick and afterwards he drew up the Will in writing but the sick person dyed before it was shewed to him Yet it was the opinion of the whole Court that the same was a good Will within the Statute of 32 H. 8. to convey Socage Land Trin. 6 E. 6. Dyer 72. So was it adjudged in 4 and 5 Eliz. in Hinton's Case where Articles were read to the Devisor concerning the disposition of his Lands and the Articles were written and engrossed after his death and yet it was a good Will within the said Statute of 32 H. 8. A man intended Land to J. S. for life the remainder to J. D. and before the remainder was written the Devisor dyed It was the opinion of the Court that the same was a void Devise for the whole Lands within the Statute of 32 H. 8. because that the one did depend upon the other But in that case it was holden that if a man seised of two Acres intends one of them to J. S. and the other to J. D. and the Devise to one is written but the Devisor dyeth before the Devise of the other Acre to the other is written It is a good Devise for the Acre which is written but not for the other Acre B. Brought Writ of Entry in nature of an Assize against his Fathers Wife The Case upon Evidence was this viz. H. B. the Plaintiffs Father and Husband of the said Wife being sick at London sends for A. desiring him to write the Last Will and Testament of his Lands A. desires B. to declare what he would have his Last Will and Testament to be and who to be his Executors whereupon A. wrote short Notes of his Last Will and every Legacy and who should be his Executors then return'd to his own House there wrote the said Will in Order and Form and therewith returning to the House of H. B. within half an hour after 12 intending to have read the same unto him was then told that the said H. B. dyed at twelve of the clock just before Whereupon A. delivered the same to the Executors that were therein named The Wife enters on the Testators Tenements and what was Devised to her the Son enters upon her the Wife re-enters whereupon the Plaintiff brought his Writ The Opinion of all the Justices was That it was a good Will in writing according to the Stat. of 32 H. 8. and declared their Opinion on the Evidence given whereupon it passed for the Wife and she enjoy'd the Land CHAP. V. Of Testaments Priviledged and Unpriviledged 1. Testaments Priviledged what and how many kinds thereof 2. Military Testaments their priviledges 3. Testaments made in favour of the Testators Children their priviledges 4. Testaments made for good and pious uses their priviledges 5. Testaments Vnpriviledged what § 1. TEstaments Priviledged are such as are qualified by some special freedome or benefit contrary to the common course of Law or by some special freedome are discharged from the usual Requisites and Observations of Common and General Law whereof there are as in the second Chapter chiefly these three kinds viz. 1. Military Testaments 2. Testaments made in favour of the Testators Children 3. Testaments for good and pious uses 2. The priviledges of Military Testaments or of a Testament made by a Souldier are many but chiefly these Four viz. 1. A Souldier is not disabled from making his Testament by any of those impediments which disable others unless for want of Reason or other like grand causes whereby he is disabled Jure Gentium 2. Whereas divers persons are prohibited from being Executors or Legataries to other persons yet the Law doth not so prohibite them from being Executors or Legataries to a Souldier save in some very few Cases specially limited in the Law 3. Souldiers are clearly acquitted from the observation of the Solemnities of the Civil Law in making of Testaments 4. Whereas no other person can dye with two valid Testaments yet a Souldier may and both Testaments shall stand good according to the intent or meaning of the Testator Other priviledges there are peculiar to Souldiers in making their Testaments but they being many it would not answer the design of a Compendium to make a specification thereof Only let it not here escape our Observation that these Priviledges belong only to such Souldiers as are in expedition or actual Service of war and not to such as lye safely and securely in some Castle Garrison or other like place of defence 3. The priviledges of Testaments made in favour of the Testators Children are chiefly these three viz. 1. If two Testaments be found after the Testators death of divers tenures and it appear not which of them is the latter Testament In this Case that shall be presumed the latter and so prevail which is made in favour of the Testators Children 2. The Testament made in favour of the Testators Children is not so easily revoked as possibly other Testaments may be 3. A Fathers Testament among his Children shall take effect though there be no Witnesses to prove the same being written or subscribed by the Testators hand or by him procured to be written by some other Howbeit these two last Priviledges by the Custome of England the latter of them especially are common to all English mens Testaments so also are all
an Account against B. as Receiver of the monies of the said J. S. upon Ne unque Receiver pleaded It was found for the Plaintiff and Judgment given that he should Account and being in Custody upon a Capias ad Computandum he was found in Arrearages and his body taken in Execution Afterwards the Will was made void in the Ecclesiastical Court for that the said J. S. was an Ideot from his birth which being certified by Writ into the Chancery and thence by Mittimus into B. R. an Audita Querela was brought by B. setting forth all the said matter whereupon the Court demurr'd It was said by Cook That in 35 H. 8. It had been Adjudged That in that Case the Audita Querela did well Lie The Marquess of Winchester by his Will in writing as supposed Devised divers Mannors to his Reputed Sons Devising further that they should sell divers Mannors and also bequeathed Plate and other Legacies to them This Will was assayed to be Proved in the Prerogative Court but it appearing by circumstances the said Marquess to be Non compos mentis at the time when the supposed Will was made it was moved for a Prohibition in B. R. because a Will touching Lands and a Will concerning Goods were both mixt together and that in Case they should there proceed as to the Goods the same would prevent the Tryal in the Kings Bench where a Will for Land shall be Tryed for which Reason a Prohibition in that Case was generally awarded 2. In that Case it was resolved That a Testator at the making of his Will ought to be of a memory not only to answer to ordinary and familiar questions but also to have a disposing memory so as to be able to make a disposition of his Lands with Reason and Understanding and that That is such a memory which the Law calls Sanae Memoriae CHAP. IX Of Persons Intestable for want of Freedom or Liberty 1. Of Villaines 2. Of Captives 3. Of Prisoners 1. VIllaines are Intestable if their Lord by Entry and Seizing take and enjoy all their Lands and Goods otherwise their Wills are not void but by such Entry and Seizing before Probate they become voidable Except of such Goods whereof such Villains were Executors to others for of such Goods they may not only make their Wills but also maintain actions even against their Lords in case they should take from them such goods as they have by Executorship But of this there is little or no use with us now here in England as in former times 2. A Captive during the time of his Captivity cannot make a Testament yea though he afterwards make an escape yet the Testament made during the Captivity is void but if it were made before his Captivity then after his escape or enlargement it shall be as good in Law as if he had not been Captive at all Likewise he that is alive and in Captivity for the upholding of his Will which he made in his Liberty is feigned by a Legal fiction to be dead the hour before he became Captive so that if he dye in Captivity yet is his Testament so made before his Captivity allowed and his Executor shall have all his Goods as if he had died the day before his Captivity Likewise if any person be taken by a Pirate Turk Infidel or Christian with whom open War is not proclaimed he so taken remaineth a Freeman in construction of Law as to Testability notwithstanding such Capture and therefore his Testament made during such restraint shall be good 3. Persons condemn'd to perpetual Imprisonment cannot make a Testament But a person imprisoned only for debt or the like is not thereby disabled to make his Testament or is his Testament void except it be made in the favour of him at whose Suit the Testator is imprisoned on purpose to extort the same from him CHAP. X. Of Women Covert 1. Women Covert Intestable as to Lands 2. They are Intestable as to Goods without the Husbands License 3. They are Testable as to Chattels by Executrixship 4. They are Testable as to things meerly in action whereof they were not possessed during Coverture 5. Whether they may accept Executrixship without their Husbands consent or the Husband Administer in case of their refusal thereof 6. Cases in the Law concerning this Subject 1. THat Women Covert are Intestable for want of Freedome is not such a general Rule in Law as to exclude all exceptions It is true a married woman cannot make her Testament of any Lands Tenements or Hereditaments specially she cannot devise the same to her Husband though she were not thereto constrain'd by him but would do it of her own accord freely and voluntarily and though such Testament were made before her Marriage with such Legatary-husband And albeit the Wife survive the Husband yet the Testament made during Coverture is not good But yet if after her Husbands death she approve and confirm such Testament made under Coverture then this new Consent or new Declaration of her Will makes the Devise good Also if the Testament were made before Marriage and she out-live her Husband it shall be good Also where power of selling the Testators Land is given to a Wife-Executrix there she may sell even to her own Husband or to whom she please 2. Of Goods and Chattels the Wife cannot make her Testament without her Husbands License for all the Goods and Chattels which the Wife had at the time of marriage and all the Chattels real if he survive the Wife belong unto the Husband by vertue of the said marriage Yet by the Husbands License she may make her Testament even of his Goods yea though the Husband understand not of his Wifes Will yet if after Probate thereof made by the Executors he deliver them the Goods therein Devised he thereby ratifies the Testament though he were not privy to the making thereof for the Goods being once delivered by him according to the tenour of the Will it is then too late for him to revoke the same Otherwise notwithstanding his License given her to make a Will of his Goods he may revoke the same at any time before the Probate thereof Or otherwise having made her Will by her Husbands License he may chuse whether he will suffer it to be Proved for his Consent is necessary as well to the Approbation as to the first making thereof And this extends also to the Goods which she had in her own right before marriage for thereby immediately all Chattels personal and Goods moveable are so devested out of her into her Husband that although she survive him yet they return not to her again but go to her Husbands Executor or Administrator 3. Touching Goods which she hath as Executrix to another the Case is otherwise for such do whether she or her Husband
to all intents and purposes yet the Indenture referreth to that which did bear the name of a Will And although it was not a Will indeed it was not material A Feme Covert Executrix may without her Husbands consent make an Executor of those Goods she hath as Executrix Likewise she may make an Executor of the Things in Action due to her A Woman Covert may make a Testament if her Husband agree to it after her death And such albeit she be an Executrix cannot Devise any of the Goods she hath as Executrix without her Husbands consent or his agreement to it afterwards yet she may make an Executor thereof without his consent Likewise a Feme Covert cannot Devise things in Action which she hath without the consent and agreement of her said Husband If a Woman Covert die Intestate Administration may be committed of her Goods for possibly she had things in Action which are not given by the Law to her Husband D. 8 Eliz. 251. 90. Admitt CHAP. XI Of Persons Intestable by reason or for want of their Principal Senses HE that is both Deaf and Dumb by Nature can make no Testament or Last Will except it may appear upon good and sufficient ground that he doth understand what a Testament means and also that he hath Animum Testandi for if so then he may by plain significative tokens and signs declare his Testament But in case he be Deaf and Dumb only by accident he may if he be able write his Testament with his own hands or otherwise not being able to write yet having understanding he may as the other make his Will by signs else not at all Such as are only Deaf and not Dumb may make their Testaments Also such as are Dumb and not Deaf may write their own Testaments if they can otherwise they may make them by good and sufficient signs well known to the Witnesses then present Also a Blind man may make a Nuncupative Testament before a sufficient number of Witnesses but not a Written Testament unless the same being read to him before Witnesses he in their presence acknowledge the same for his Last Will and Testament So that the bare acknowledging thereof to be his Last Will without hearing the same read unto him is not sufficient CHAP. XII Of Persons Intestable by reason of some Criminal Convictions 1. Traytors Intestable from the time of the Crime committed 2. Felons not Intestable before Conviction 3. Hereticks Intestable till they reclaim their Heresie 4. Apostates Intestable 5. Incestuous Intestable saving to their Parents and Children 6. Sodomites are Intestable 7. Self-murderers Intestable under Limitations 8. Out-Laws and Excommunicates not absolutely Intestable 9. Outlawry in an Intestate no good Plea in Bar to a Creditors Action against his Administrator 1. TRaytors are Intestable for they lose both their Lives Lands and Goods whereof they were possessed at the time of the Treason committed or at any time after Insomuch that Traytors are Intestable not only from the time of their Conviction but also from the time of the Crime committed So that the Testament before made doth by reason of the conviction become void both in respect of Goods and also of Lands Tenements and Hereditaments Howbeit a Traytor that is pardoned and restored may make his Testament Neither shall such Goods as the Traytor hath as Executor to another be forfeited whence it follows that of such Goods he may make his Testament which also extends to persons Out-law'd for Debt also to persons attainted or convicted of Felony 2. Felons are likewise intestable being lawfully convicted for the Law hath otherwise disposed of their Lands and Goods But if a man be only Indicted of Felony and die before his Conviction or Attainder he may make his Testament both of Goods and Lands Or being Indicted and thereon Arraigned stands Mute and Dumb and will not Answer in this Case he forfeits only his Goods and therefore may make a Testament of his Lands And here Note that in respect of a Felons Lands the time of the Fact committed is to be respected but in respect of his goods the time of his Judgement So that he loseth his Lands from the time of committing the Fact but his Goods only from the time of Conviction insomuch that at any time before his Conviction he may bequeath sell or otherwise alienate his Goods and Chattels Howbeit if he make his Testament before his Condemnation it will be frustrated and prevented by his Judgement So that the Testament of a Felon convicted is void though he be never Executed void even by force of the Condemnation unless he afterwards doth obtain his pardon 3. Hereticks if they be Convicted or publickly Excommunicated cannot make a Testament of their Goods and Chattels But if they reclaim their Heresie they are not Intestable 4. Apostates or they who do wholly renounce the Christian Faith which once they did profess and do become Jews Turks or Infidels are worthily excluded by the Law from being capable of making a Last Will or Testament 5. Incestuous persons are prohibited to dispose of any Goods or Chattels by Will saving to their Children begotten in marriage that is in lawful marriage or to their Parents Brothers Sisters Unkles or Aunts Where by Parents understand all of each Sex in the right Line ascending and by Children all of each Sex in the same Line descending 6. Sodomites or such as are guilty of that wicked and abominable sin against Nature mentioned in the Holy Scripture are intestable and prohibited to bequeath their Goods or Chattels 7. Self-murderers or such as wilfully destroy themselves are intestable nor can they make any bequest of their Goods for they are all Confiscate Yet there are Those who distinguish between the kinds or rather the occasions of Self-murther viz. 1. That which is occasioned through the fear of Execution of a Judgement of Condemnation 2. That which is occasioned through a tired sense of a long tedious and irksome life 3. That which is occasioned through the pain and violence of some Disease In the first case it is said they lose like other Felons both Lands and Chattels in the second Chattels only in the third neither Lands nor Chattels 8. Out-lawed persons though out-lawed but in an Action personal forfeit all their Goods and Chattels and therefore cannot make any Testament thereof But the Out-lawed for Felony forfeiting their Lands as well as their Goods and Chattels cannot make any Testament of either Though the Out-lawed only in an Action personal may make his Testament of his Lands yet not so of his Goods and Chattels And as for Excommunicate persons if they be excommunicated for Heresie or other cause which renders them in it self legally intestable in such cause they cannot make
him a Legacy upon condition that he marry with the consent and according to the good liking or appointment of some other person this condition is unlawful Insomuch that if such Executor or Legatary marry contrary to such restraint or condition he shall notwithstanding be admitted to the Executorship and receive the Legacy as if no such Condition had been expressed 2. Notwithstanding what hath been said the Condition holds good if the Testator make one his Executor or give him a Legacy if he marry not without the Counsel or Advice of another person so that the Testator giving him a Legacy if he marry with the Counsel or Advice of another person he is excluded from the Legacy if he marry without such Counsel or Advice yet in this case he is not bound to follow such counsel or advice but only to request the same Again although the condition of marrying with the consent of another is void so as the party on whom such condition is imposed may obtain the Legacy without such consent yet marry he must or he cannot obtain the Legacy for although the condition of such Consent be unlawful yet must he marry before he can pretend to the Legacy because that part of the Condition is not unlawful CHAP. XVI Of the manner of Proceeding during the suspence of the Conditions 1. The Condition depending Administration may be committed to the Conditional Executor 2. The Law what in case the Condition be not performable by the Executor on whom it is imposed 1. THat Creditors and Legataries may have Remedy during the suspence of the Condition of the Executorship or Legacy it is lawful for the Judge to commit Administration to him that is conditionally assigned Executor yet only for so long time as the Condition dependeth and is not extant or else deficient and when the Condition is extant he may Prove the Will and detain the Goods of the deceased as Executor to the Will but if the Condition be infringed or utterly deficient then ought he to make restitution to the next of Kin to the deceased or to those to whom belong the Administration of his Goods for by breach or defect of the Condition the deceased is reputed to have died intestate or as if he had never made an Executor And the former Administration being forfeited a new may be committed But if the Conditional Executor will not meddle with the Administration of the deceased's Goods when the Condition is performable then may the Judge assign the Conditional Executor a competent time for the accomplishment of the Condition within which time if it be not performed by him and if it be within his power it may be imputed for infringed or deficient Provided that other time for the performance of the Condition be not assigned in the Condition it self And in case of such infringement or deficiency Administration may be committed according to the Statute as of one dying intestate But if the Judge knowing of this Will doth commit Administration to some other without the Executors knowledge or without appointing him some competent time for the accomplishment of the Condition then is the Administrator in hazzard of being sued by the Executor in an Action of Trespass unless the Executor did formerly refuse 2. If the Condition be such as that it doth not lie in the power of the Executor to perform the same then may the Judge at the Petition of the Creditors assign a time to such conditional Executor to undertake the Administration of the Goods which if he neglect or refuse then may the Judge after such time elapsed commit the Administration to such as have Interest untill such time as the Condition be either extant or deficient or else as some think the Judge may grant a Letter ad Colligendum to some other person than the conditional Executor But then Note that such person as hath such Letter ad Colligendum not being Administrator the Actions which otherwise might be brought against the Administrator may now lie against the Judge And though the Judge may grant his Letter ad Colligendum yet he hath not power to give Authority to sell any of the said Goods though perishable And if such person to whom such Letter ad Colligendum is granted should by vertue of such Power sell any of such the said Goods he is suable as Executor to his own wrong CHAP. XVII Of Testaments void 1. By what means Testaments are void Originally 2. By what means they become void afterwards 3. Law-Cases pertinent to this matter 1. A Testament may be Originally void or voidable wholly or in part through some original defect as thus First because the Testator is such a person as cannot make a Testament Secondly because the things bequeathed are not deviseable by Will Thirdly because the manner of the disposition is unlawful Fourthly because the person made Executor is uncapable thereof Fifthly because the Testator was compelled by fear or circumvented by fraud or overcome by immoderate flattery or induced by some other unlawful means to make his Will Sixthly because of errour uncertainty or imperfection Seventhly because the Testator had not Animum Testandi 2. A Testament though free from all Original fault may yet afterwards become void As first by making of a later Testament Secondly by cancelling or revoking that which is made Thirdly by some alteration of the state of the Testator Fourthly by forbidding or hindering the Testator from making another Testament or from correcting the former Fifthly by unwillingness or inability of him that is appointed Executor when he will not or cannot officiate as Executor Sixthly when the Executor cannot be certainly known there being divers men of that name and no distinction made this uncertainty of the Executor maketh void the Will Seventhly when the Testator doth err in the person of the Executor but in an errour of the Name only and not of the Person it is otherwise save in certain Cases hereafter limited Thus a Testament though free from all Original fault may yet afterwards become void but a Testament originally void can never afterwards be made good 3. Errour upon a Judgment given against the Plaintiff in C. B. on a Formedon in Remainder upon special Verdict and found that D. gave instructions for the writing of his Will to give his Lands to one of his Sons for life and the Scrivener by mistake wrote an Estate in Fee and the Court agreed that the Will was utterly void because it was not the Will of the Testator Yet it seem'd to Fenner Justice that for so much as it may be it should be that is for an Estate for life which was his Will but all the other Justices were against him In the Court of Wards between the Co-heirs of Sir William Rider it was declared by Coke Chief Justice of
ought in this Case the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee unless the condition were that the Feoffor pay to the Feoffee or to his Heirs such a summ of money at such a day Here note That the Executors do more represent the person of the Testator than the Heir doth the person of the Ancestor for though the Executor be not named yet the Law appoints him to receive the money but not so the Heir unless he be named Here also note That if the Condition upon the Mortgage be to pay the Mortgagee or his Heirs the money and before the day of payment the Mortgagee dieth the Feoffor cannot in this Case pay the money to the Executors of the Mortgagee But if the Condition be to pay the money to the Feoffee his Heirs or Executors then the Feoffor hath election to pay it either to the Heir or Executors 2. If a man make a Feoffment in Fee upon Condition that the Feoffee shall pay to the Feoffor his Heirs or Assigns Twenty pound at such a day and before the day the Feoffor makes his Executors and dieth the Feoffee may as aforesaid pay the same either to the Heir or to the Executors for they are the Feoffors Assigns to this intent But if a man make a Feoffment in Fee upon Condition that if the Feoffor pay to the Feoffee his Heirs or Assigns Twenty pounds before such a Feast and before the Feast the Feoffee maketh his Executors and dieth the Feoffor ought to pay the money to the Heir and not to the Executors for the Executors in this Case are no Assigns in Law And the reason of this difference is for that in the first Case the Law must of necessity find out Assigns because there cannot be any Assignes in Deed for the Feoffor hath but a bare Condition and no Estate in the Land which he can assign over but in the other Case the Feoffee hath an Estate in the Land which he may Assign over And where there may be Assignes in Deed the Law shall never seek out or appoint Assignes in Law CHAP. XIX Touching the Executors Election to accept or refuse the Executorship 1. Of the Judges Power to affix the time for that Election or in Case of the Executors refusal what his Power is 2. In what Case a person may be compell'd to accept the Executorship notwithstanding his Judicial refusal 3. How one appointed Executor by the Will may Administer notwithstanding his refusal to Prove the same 1. HE that is appointed Executor in a Will may be summoned to appear before the Judge of the Jurisdiction to accept or refuse the Executorship The time wherein he that is named Executor in the Testament is to deliberate and determine whether he will accept or refuse the Executorship is uncertain and left to the discretion of the Judge who hath used at his pleasure and when he will not only within the year but within a moneth or two to Cite him that is named Executor to accept or refuse the Executorship and upon the non-appearance or refusal of such Executor to Prove the Will the Judge may commit Administration as of an Intestate And such Administrators Power is effectual in Law untill the Executor undertake the Executorship For then the Judge may revoke such Administration But if the Judge knowing that there is a Will grant Administration not having first called the Executor to accept or refuse the Executorship the Executor when he shall have Proved the Will may Sue such Administrator in an Action of Thespass Because the Judge hath no power to grant Administration but in Case of Intestation or that the persons named Executors either will not or cannot be Executors 2. No man can be compell'd to accept the Executorship unless he hath already intermedled with the Testators Goods as Executor for then it is too late for him to refuse Yet if any Legacy be given him in the Will wherein he is named Executor he may then be compelled to accept the Executorship or he shall lose his Legacy Yea though he were of Kin or Allied to the Testator Yet the Wife shall not lose her Thirds nor the Children their Filial Portions by refusing the Executorship 3. Although where an Executor hath Administred he cannot afterward refuse because he hath thereby determined his Election and although where there is an Executor and he refuse or many and all refuse the party is dead as Intestate and Administration is to be committed with the Will annexed yet in case there be divers Executors viz. A. B. C. and A. only refuse and the Will be Proved by the other Two there A. continueth an Executor notwithstanding his refusal so as he may still release debts of the Testator and debts owing by the Testator may be released to him Yea if Sute be to be had by or against the Executors it shall not be in the Names of B. and C. only but A. also must be Named as a Plaintiff or Defendant or else the Action may be overthrown Yea this Executor which refused may afterwards Administer at his pleasure and intermeddle with the Goods as well as the others but after their death he cannot so do for then the Executor of him that Proved the Will is only to Administer and the others refusal continuing to the death of his Co-Executor his Power then died also with him but so long as the one Co-Executor liveth that Proved the Will the other though he refused the Executorship before the Judge may yet afterwards so long as the other lives Administer the Goods or Remit the Debts due to the Testator And that Co-Executor that so Proved the Will cannot hinder him nor can he Recover against the persons by him so released Trespass It was found by Verdict That Sir Ralph Rowlet being possess'd of a Term made his Last Will and thereof made the Lord Keeper Bacon Catlin Chief Justice and others his Executors and Devised the Term to the Lord Catlin and died All the Executors wrote a Letter to Dr. Dale Judge of the Prerogative Court That they could not intend the Execution of the Will and desired him to commit the Administration to Henry Goodyer the next Kin of the Testator The Administration was accordingly granted but the Register Entered the Cause viz. For that the Executors did defer suscipere onus Testamenti After this Catlin Entered upon the Land Devised to him and granted it over the doubt was whether this Grant were good 1. Whether the Letter were a sufficient Renunciation 2. Whether if they once refuse they may after Administration granted Administer at their pleasure Dr. Ford declared to the Justices That by the Civil Law a Renouncing may be as well by matter in Fact as by a Judicial Act and they may refuse
was a good Execution of the Devise without any Probate made of the Will Mich. 22 Eliz. Dyer 367. Letters of Administration do relate to the time of the death of the Intestate and not to the time of the granting of them and therefore an Administrator may have an Action of Trespass or a Trover and Conversion for Goods taken by one before the Letters granted to him otherwise there would be no Remedy of the wrong done Executors took the Testators Goods before they had Proved the Will another took Letters of Administration and takes the Goods out of the Executors hands before the Will was Proved The Executors bring their Action of Trespass against him who took the Goods the Court held that it did well lie for after the Testators death the Goods belong to the Executors and to none other and an Administration to intermeddle with these Goods is utterly void for that they have nothing to do with those Goods as Administrator when there is an Executor 7. An Executor may retain Goods in satisfaction of a Debt due to him from the Testator and the Retainer shall be held good Action of Debt was brought against the Executors of A. B. who pleaded that they had fully Administred the Plaintiff gave Evidence that they had Goods in their hands the Defendant shewed that the Goods were pledged by their Testator and that they had Redeemed them with their own money to the full value and that for the rest of the Goods that they had paid to the Testator as much for them as they were worth It was holden That the same did well maintain their Issue of Fully Administred for that an Executor shall by way of Retainer be recompenced that which he hath paid But an Executor of his own wrong cannot retain Goods but they shall be Assets in his hands The like we have in another Case Two men were possessed of Goods as Executors the one of them took the goods into his hands and disposed of divers summs of money in pios usus pro anima Testatoris which summs did amount to more than the Goods of the Testator were worth and he did retain the Testators Goods as his own proper goods converting the same to his own use whereof he died possessed after he had made his Will and therein Executors The surviving Executor brought Detinue of the said Goods against the Executor to the value of One hundred pound upon which the Defendant pleaded the matter Supra It was adjudged That the Retainer was Lawfull and that those Goods now in the hands of the Executors were not Assets or Goods of the first Testator in the Executors hands Or suppose a Testator be indebted to a man by Bond in Twenty pound if his Executors make a sufficient Obligation to the Testators Creditor and sufficiently discharge the Testator without fraud or covin they may retain the Goods for so much and the Goods retained shall not be Assets in their hands yea though they have appointed ulteriorem diem for the payment of the money S. Brought Debt against S. as Executor to B. who pleaded fully Administred c. to which the Plaintiff replyed That he had Goods of the Testators to the value of Two hundred Marks which the other confess'd and gave in Evidence that he had paid as much of his own proper money for the Testators Debts and shew'd how the Judges doubted whether he could give the matter in Evidence and desired the Opinion of the Justices of B. R. thereon who held That he might give it in Evidence whereupon the Justices proceeded accordingly For it was agreed Hill 10 H. 8. That the property of the deceaseds Goods by payment of the Testators Debts to the value of the said Goods retained to the amount in value was altered and the property being altered to the use of the deceased is a just Administration CHAP. XXI Of Inventories 1. Within what time an Inventory is to be made and exhibited 2. The manner how and reason why an Inventory is to be made 3. What ought to be inserted into the Inventory and what not 1. THe time appointed for the making of an Inventory and for exhibiting the same is left to the discretion of the Judge which he is to regulate according to the circumstances of Place Person Goods c. yet Regularly the Inventory ought to be begun by the Executor within Thirty dayes next after the Testators death or his notice of being made Executor and to be finished within Thirty dayes more after that or within a year if the Goods be remote else he may be charged for the whole debt 2. The Executor in making of an Inventory ought to call Two at least of the Testators Creditors or Legataries or upon their refusal or absence Two other honest persons and in their presence shall make a true and perfect Inventory of all the Testators Goods Chattels and Credits and the same shall be indented whereof one part shall be by the said Executor upon his Oath for the Truth thereof left in the Registry of the Court the other part to remain with himself In which Inventory the Testators Goods and Chattels are particularly to be valued and apprayzed at their true and just value And all such Goods and Chattels as are contained in the Inventory are presumed to have belonged to the Testator and now to the Executor and no more Therefore if a Creditor or Legatary affirm that the Testator had at his death more Goods than are comprised in the Inventory he must prove the same for such an Inventory by the Civil Law cannot be disproved unless the number of the Witnesses be twice as many in number as they which do Prove it And if the Executors or Administrators do make a True Inventory they shall not be charged further with any Debts than the Goods of the Testator or Intestate will extend But if the Executor Enter upon the Testators Goods without making an Inventory then the Presumption of Law will be against the Executor that he had Goods sufficient not only to pay the Debts but all the Legacies also So that the Reason is evident wherefore an Inventory is to be made viz. lest the Executor if otherwise than honestly disposed should defraud the Creditors or Legataries by concealing the Testators Goods 3. Generally all the Goods and Chattels whereof the Testator died rightly possessed some certain things for special Reasons and Legal reservations only excepted ought to be put into the Inventory And therefore Leases are not exempted Also Corn growing on the ground is to be put into the Inventory because it belongs to the Executor But not Grass or Trees so growing which belongs to the Heir Nor Glass-windows nor Wainscot Nor Tables Dormant nor Mangers nor any thing affixed any way to the Freehold Nor the Box or Chest containing the Evidences of the Land nor Doors Locks
Debt out of the Testators and not the Executors Goods which is conceived a more reasonable way than to charge the Executors for that they bear the burthen of the Administration of the deceaseds Will they deserve to have as much favour as Reason will admit and not be charged of their own proper Goods It was further said That if an Executor should be lyable to such Judgement of his own Goods it would be a cause of often refusing the Administration of Testaments for it is a thing of ill consequence to bind Executors in their own proper Goods in any other Cases than have been in fore-time adjudged which Cases were cited out of divers Books but here omitted for brevities sake none of which Cases have any resemblance with this in question Debt was brought against an Executor the Plaintiff Declared upon a simple Contract To which the Defendant pleaded Fully Administred It was found against him and moved in Arrest of Judgement for that the Action was against an Executor who is not chargeable in that manner and it was said That when it doth appear to the Court that the Executor is not chargeable the Court ought not then to Judge for the Plaintiff and to this purpose some Books were cited and it was said That the Reason why an Executor shall not be charged upon a simple Contract is for that he is a Stranger and cannot have notice of the Contract and therefore the Law will not have him to be charged for that alone without somewhat else But in this Case it appears that he had notice of the Contract inasmuch as thereupon he pleaded fully Administred and that Plea being admitted it implyes as if he had known of the Contract and therefore when he pleaded that he had fully Administred which was found against him Judgement ought to have been given for the Plaintiff for proof whereof a Judgment was cited which appears to have been given An. 10 H. 6. fol. 15. and 13 H. 6. As the Book sayes in the like Case against an Executor upon a simple Contract All which notwithstanding it was resolved by the Court That the Plaintiff should take nothing by his Writ giving their Reasons for such their Judgement which for brevities sake are also here omitted Debt against an Administrator upon an Arbitrement made betwixt the Plaintiff and the Intestate in Writing and the Defendant demurr'd thereupon and without argument it was adjudged for the Defendant because the Intestate might have waged his Law But otherwise it were if it had been in debt upon Arrerages of Accounts before Auditors Assumpsit against an Executor upon the Promise of the Testator and in the Declaration it was not averred That he had Assets to pay debts c. But Mich. 29 30 Eliz. It was adjudged that the Declaration was good and the Plaintiff recovered Debt against an Executor upon an Obligation made by his Testator the Plaintiff was Non-suited the Defendant had Costs by order of the Court. Otherwise it is where an Executor is Plaintiff and is Non-suited For it cannot be intended that it was conceived upon malice by him Vid. Stat. 23 H. 8. cap. 15. Debt against an Executor upon an Arbitrement made in the time of the Testator It was demurred in Law whether it lay or not Because the Testator might have waged his Law And adjudged without Argument that it lay not Debt against P. as Executor The Plaintiff had Judgement to recover de Bonis Testatoris And thereupon a Scire Facias was awarded and the Sheriff returned Quod nulla habuit bona Testatoris And the Plaintiff surmiseth that he had wasted the Testators Goods whereupon he prayeth a Scire Facias why he should not have Execution de bonis propriis And ruled by the Court That this Writ shall not be awarded upon the surmise of the party upon a devastation nor in any Case where the Judgement is de bonis propriis unless it be upon return of the Sheriff where he returns a Devastavit Vid. 9 H. 6. 9. 57. Fitzh Execution 9. Scire Facias against an Administratrix to have Execution of a Judgement against the Intestate the Defendant pleaded Quod nulla habet bona quae fuerunt Intestati tempore mortis suae in manibus suis Administranda nec habuit die impetrationis brevis nec unquam postea And it was thereupon demurred and held by all the Court that it was not any Plea for a Judgement cannot be answered without another Judgement and it may be she had Administred all the Goods in paying debts upon Specialties which is not any Administration to bar the Plaintiff Or as some said it may be she had paid Debts upon a Statute or Recognizance which is not allowable against a Judgement But Anderson denied it for there is not any Priority of Debts upon Record unless in Case of the Queens Debt which is first to be paid And here the Defendant ought to have pleaded specially how she had Administred Wherefore it was adjudged for the Plaintiff The Defendant pleaded Out-lawry in the Testator 29 Eliz. not reversed and it was thereupon demurred Herne for the Plaintiff moved That it was not any Plea because admitting it to be a Plea it should be in regard of the Testators being Out-lawed he could not have any Goods but what appertained to the Queen and then the Executors might not have any Goods to satisfie But that is not so for the Testator might have a debt due to him upon a Contract which is not forfeited or it might be the Testator Devised Lands to be sold and which are sold the money is Assets in their hands and in 3 H. 6. 17 32. it was holden to be no Plea And of that Opinion were Walmesley and Owen For a person Out-lawed may well make a Will and have Executors over and besides the Goods forfeited to the Queen as in the Cases before put and others of the same nature But Beamond è contra for the Bar is good to a common intent and these kind of Assets shall not be intended unless they be shewn Wherefore primâ facie the Plea is good Anderson absente Adjournatur Afterwards for defect of pleading without regard to the matter in Law it was adjudged for the Plaintiff 8 Ed. 4. 6. 21 Ed. 4. 5. 39 H. 6. 27. Errour of a Judgement in C. B. against Three Executors The Errour Assigned was That one of them died pending the Writ before Judgement And Warberton moved that this was Errour but when one of the Executors Plaintiffs die this is no Errour for they might be served But the Court held it no Errour 3 H. 7. 1 3. 8 Ed. 3. 11. Scire Facias against Executors upon a Judgement against their Testator in debt They pleaded that before they had any knowledge of this Judgement they had fully Administred all the Testators Goods in paying of debts upon Obligations and it was thereupon demurred and
thousand five hundred pound upon a special Verdict the Case was That W. M. had received annually out of the Exchequer Fifty pound as a Fee for his Diet for Thirty years together which was paid him by the Command of the Lord Treasurer who had Authority by Privy Seal to make allowance and payment of all Fees due but in truth these were not any due Fees And whether his Executor shall be charged with these Summs so received was the Question And after Argument it was adjudged that he should be charged for it was held That this payment of the money by the appointment of the Lord Treasurer was not allowable for the Privy Seal is not sufficient Authority to dispose of the Queens Treasure unless where it is due and he disposing of it otherwise it is out of his Authority 2. It was held That this money delivered by Authority of the Lord Treasurer who is quasi a Judicial Officer and it was quasi a Judicial Act by him yet it shall not bind the Queen for it was without his Authority and without warrant to make allowance thereof not being due and it is at his peril who receives it or demands allowance thereof For these and other Reasons mentioned in the Report it was adjudged for the Queen against the Defendant and although he were Executor he should answer for it as a debt from the Testator 11 Co. 90. b. Errour upon a Judgement given in an Assumpsit against an Executor upon a Promise of the Testators where the Plaintiff declared That the Testator in consideration of Marriage promised to pay the Plaintiff One hundred pound and for non-performance of this promise brought the Action and Judgement there given for the Plaintiff and this matter was assigned for Errour that the Action lay not against an Executor and all the Justices and Barons besides Clark Baron held it to be Erroneous for this cause For Anderson said The Reason why Debt lies not against an Executor upon a Contract of the Testators is because the Law doth not intend that he is privy thereto or can have notice thereof and he cannot gage his Law for such a debt as the Testator might and when debt will not lie it is not fit that this Action upon a bare Promise should bind him for it stands upon one Reason And if these Actions should be allowable it would be very mischievous wherefore the Judgement was reversed Q. Whether a Recovery in this Action against an Executor is allowable against a debt upon an Obligation if it should be an Administration for then it would be mischievous to Creditors and if it should not be an Administration it would then be mischievous to Executors that they should be charged therein and not have allowance thereof against other Creditors for it may be that at the time of the Recovery they did not know of other debts Note that this Term was given the like Judgement betwixt Griggs and Helhouse in an Action brought against an Administrator upon a Promise of the Intestates to pay money c. Debt against the Defendant as Administratrix of J. S. upon plene Administravit pleaded it was found by Verdict That the Testator at the time of his death had Goods to the value of One hundred pound and was bound to another by Obligation in One hundred pound and that the Defendant had taken in this Obligation and made another in her own Name with Sureties to the Obligor And upon the motion of Heale the Court held That this was an Administration and it is in the nature of a payment and so much of the Testators debt is thereby discharged and so it was said to be adjudged in Woods Case Nota fuit Ruled accordingly Pasch 30. in C. B. which was entered Mich. 28 29 Eliz. inter Stamp Hutchins Action upon the Case on Indebitatus Assumpsit doth well lye for every debt implyes a Promise and it is one good consideration in Facto whereon to found an Action But for a debt by simple Contract due by the Testator no Assumpsit lies against Executors and it was openly delivered by Popham Chief Justice No. 44 Eliz. to be the Resolution of all the Judges and to be a President in all Cases that might after happen It was agreed by Yelverton Williams and Crook Justices That if a man by Indenture lease Land to J. D. for years rendring Rent and J. D. dye making A. his Executor the Lessor may have Action of Debt against the Executor for the Rent reserved and the Arrears thereof after the death of the Lessee albeit the Executor never enter nor agree to the Lease for the Executor represents the Testators person and the Testator by the Indenture was stop'd and concluded to pay the Rent during the Term upon his own Contract and albeit the Rent exceeded the value of the profit of the Land yet the Executor cannot waive the Land but notwithstanding that shall be charg'd with the Rent Vid. Opin Ascue 21 H. 6. 24. 11 H. 4 Contr. Action Sur Trover and Conversion of Goods upon demurrer the Case was The Ordinary committed Administration of the Goods of an Intestate to the Defendant afterwards the next of Kin sues out a Citation in the Ecclesiastical Court against the Defendant to Repeal that Administration and he pendente Lite sells those Goods and afterwards his Administration is Repealed and Administration committed to the Plaintiff who for this Conversion pendente Lite brings this Action and it was moved for the Defendant that this Action lyes not for the Administration at the Common Law is well committed and the Statute doth not alter the Law in this point but gives a penalty against the Ordinary if he commits them not to the next of Kin and the Administrator till Administration Repealed hath an absolute Authority to dispose of the Goods as he pleaseth Tanfield è contra The Conversion pendente Lite in the Ecclesiastical Court is not lawful but is a Tort to the Plaintiff and that the Sentence there proves which is that all things attempted or done pendente Lite shall be void and the Justices ought to have regard to the Civil Law in this point as in 27 H. 6. Guard 118. 2 R. 2. Quare impedit 143. and 4 H. 7. 13. And by the Sentence it appears that the Administration is revoked as if it never had been and upon this reason it is in Dyer 339. where an Administrator recovered a debt and afterwards another procured himself to be joyned in the Administration and released the debt and afterwards it being revoked this release was not any bar to the execution And Mich. 25 26 Eliz. in the Common Bench between White and Cary this very point was in question and adjudged that the Action lay Gawdy The Action well lies for the Sentence doth not repeal mean Acts done by an Administrator which are for the Intestates benefit but forasmuch as these Goods were not converted
Fenner held that they should not be Assets for although being but fraudulent it shall be said to be a void Gift against the Donor and Creditor and so lyable to his debt yet it is good betwixt the Donor and Donee and shall not be Assets in the hands of any but the Donor or Donee but here the Husband is a meer Stranger thereto wherefore c. But all the other Justices è contra for that by the Common Law the Gift being fraudulent they are lyable to the Plaintiffs Execution And Popham said If the Gift were good against all but Creditors as it is then they belong to the Donee and in his hands are lyable to this debt and if the Gift be void they remain to the Executors of the Feme and then the Baron having taken them and paid Legacies is chargeable by reason thereof as Executor de son tort demesne and so those Goods quacunque via data are lyable to this debt in whosesoever hands they come unless by Title Paramount or by Sale bonâ fide wherefore it was adjudged for the Plaintiff Scire facias against S. as Executor of F. V. upon a Judgement given against the Testator of Two hundred pound he pleaded payment of Forty pound debt due to the Queen and besides that he had riens in ses mains And thereupon they were at Issue whether he had Assets And it was found by special Verdict That the Testator was possess'd of divers Goods to the value of Two hundred fifty pound and by covin to defraud his Creditors made a Gift of his Goods to his Daughter with a condition of payment of twenty shillings that it should be void and died The Defendant intermedled with the Goods and afterwards the Daughter by this Gift took the Goods and after that Administration of the Goods of F. V. was committed to the Defendant and whether upon this matter he shall be charged as Executor and that those Goods should be Assets in his hands was the question And after Argument it was adjudged for the Plaintiff For first when he medled with the Intestates Goods although he were neither Executor nor Administrator and afterwards Administration was committed unto him a Creditor hath election to charge him as Executor or Administrator especially here when he pleads as Executor the finding by the Jury that he is Administrator is not to purpose 9 Ed. 4. 53. 2 R. 3. 20. 21 H. 6. 8. Secondly all the Court held That this Gift of the Goods is in it self fraudulent as appears by the Condition and the Covin is expresly found by the Jury and then it is utterly void against the Creditors by the Stat. of 13 Eliz. and the Intestate died possessed of them and when afterwards the Donee took them it was a Trespass against the Administrator for which he hath his remedy and they are alwayes Assets in his hands But if a Trespasser takes Goods from a Testator in his life-time so as they never were but a chose in Action to the Executor or Administrator they be not Assets until they be recovered Wherefore notwithstanding the taking of them by the Donee yet they alway remained as Assets in the hands of the Administrator and therefore he is chargeable for them as Executor de son tort by his intermedling with them before Administration committed and the Goods by Law remained alwayes in his possession Wherefore it was adjudged for the Plaintiff CHAP. XXV Additionals to the three last precedent Chapters touching how far and wherein Executors may be charged 1. Executors not chargeable upon a simple Contract of the Testators 2. Actions of Account lye not against the Executors of the Accountant 3. Personal Actions lye not against Executors as Executors 4. Executors lyable for no more than comes to their hands 5. The Husband not lyable for his Wifes debts after her decease 6. In what Case the Ordinary may be sued for the deceaseds debts 7. How an Executor may make himself chargeable de bonis propriis 8. The method of proceedings where Execution is de bonis propriis 9. Executors obliged though not mentioned in the Obligations 10. Contracts dissolved by Obligations after made 1. VVHerever the Testator might wage his Law there the Action lyeth not against the Executor therefore he is not chargeable upon an Action of Debt upon a simple Contract yea though such a debt grew for the most necessary things as Meat and Drink which bindeth even an Infant to payment yet will it not charge the Executor of a man of full Age so that though a common Host or Victualler trust his Guest he loseth his debt by his death Understand these things of Contracts only by word for where the Testator in his life-time did put his Seal to any Deed or Writing made upon any such thing this being then more than a simple Contract taketh from the Vendee his wager of Law and thereby chargeth his Executor But if the Testator Seal only unto a Tally or the like with Scotches expressing a debt this is no such specialty as shall charge his Executors And although no Action of debt lyeth against the Executor as aforesaid upon a simple Contract yet may the Creditor in that Case maintain an Action upon the Case grounded upon the Assumption implyed though not express'd And thus indeed the Executor is charged in substance or matter for a simple Contract though not in manner for a debt but as for breach of promise making recompence in dammages instead of the debt 2. No Action of Account lyeth against Executors except for the King that is against the Executors of the Accountant Nor indeed at the Common Law for the Executors of him to whom the Account is to be made but that is help'd by Statute For Executors could not have an Action of Account at the Common Law in respect of the privity of the Account but the Stat. W. 2. cap. 23. hath given an Action of Account to Executors the Stat. of 25 Ed. 3. cap. 5. to Executors of Executors and the Stat. of 31 Ed. 3. cap. 11. to Administrators And as an Executor is not chargeable in an Action of Account as aforesaid so neither is he chargeable in an Action of Detinue nor of Account except to the King for the Testators detaining and not paying or answering things received or under his charge or custody 3. Although Executors are in Law understood as the Representees of their Testators persons yet if the Testator in his life-time commit any Trespass either upon the Person Lands or Goods of another no Action lyeth against his Executor for the same the reason is Actio personalis moritur cum persona as hath been formerly declared Hence it is that there is no remedy in Law to compel Executors though they have Assets to make satisfaction of a Trespass done by the Testator in his life-time for every Trespass dyeth with the person And therefore also it
is that no Action lyeth against the Executor of him who in his life-time carried away his Corn Hay c. without setting forth the Tenth and died before recovery had against him for the same although during his life the treble value were recoverable against him in an Action of debt and this holds true though the Testator were a Lessee for years so as his State came to his Executors The Law is the same and upon the foresaid Reason and Rule in Law if a Lessee for years commit wast and die no Action lyeth against his Executor for this wast Yet the Law is otherwise against Executors of Ecclesiastical persons in case of Dilapidations for if a Parson or Vicar do suffer the buildings of his Benefice to go to decay and dies his Executors are lyable by the Spiritual Law to the Successors Sute 4. An Executor shall not be charged with nor in respect of any other Goods than those which came to his hands after his taking upon him the charge of the Executorship or by vertue thereof And although the Executor of an Executor shall answer others to whom the first Testator was indebted as much as he shall recover of the Goods of the first Testator yet if that Executor did Alienate and Convert to his own use all the Goods which did belong to the former Testator in this Case no Action doth lye against the Executor of the Executor for Recovery of any debts due by the first Testator Likewise where A. makes B. Executor and B. makes C. Executor there the Goods which came from or were left by A. be not in the hands of C. lyable unto the Judgements had against B. Nor on the other side are the Goods of B. in the hands of C. subject to the Judgements had against A. And the like is to be understood of Statutes Recognizances and Bonds Also by the Laws of this Land an Executor shall not be charged by any bequest made by his Testator of the Goods that did belong to another man Indeed by the Civil Law it is otherwise for there it is lawful for the Testator to bequeath another mans Goods which the Heir at the Civil Law must buy or pay the value thereof if the Owner will not sell them 5. If a Woman in debt marry and dye before the debt be recovered against her though leaving to her Husband much more than the value of the debt yet is he not lyable in Law to pay one penny of her debts after her decease because he neither is her Executor nor Administrator nor came to her Goods by wrong Insomuch that a Woman indebted One thousand pound and having Leases and other immoveable Goods to the value of Three or Four thousand pound marrying with A. B. and then dye before the debt be recovered against her In this Case the Husband shall have all the value of his Wifes Estate and yet in Law not be lyable for her debts during her life he is lyable but not afterwards This seems a defect in the Law whereby Creditors are at a loss without remedy therefore let them sue in her life-time for Lex fit vigilantibus non dormientibus 6. If a man be indebted and dye Intestate or if the Executors of one who hath made a Will refuse to be Executors whereby the Goods do come to the hands of the Ordinary the Creditors may have a Writ of Debt against the Ordinary by the Stat. of West 2. cap. 19. and in this case he must be sued by the name of Ordinary But after Administration committed the Ordinary shall not be sued 7. An Executor may make himself chargeable of his own proper Goods either by Omission or by Commission By Omission as when he being sued upon an Obligation or the like there being at the same time a Judgement in force against him or the deceased and hath but just enough in his hands to satisfie that Judgement yet doth not plead this in Bar of the present Action but suffers the Plaintiff to recover against him in this Case he must satisfie the second debt out of his own Estate Or by Commission as when he doth something that is a Wast in him and thereupon a Devastavit is return'd against him in which case he must answer as much as he wasted out of his own Estate or when a sute being against him he pleads such a false Plea therein as tends to the perpetual Bar of the Plaintiffs Action and yet being of a thing within his certain knowledge as when he pleads he is not Executor nor ever Administred as Executor and upon tryal of this issue it be found against him that he is a lawful Executor or Executor in his own wrong in this Case he must satisfie the debt out of his own Estate whether he hath Assets or not and the Execution had upon the Judgement shall be levied upon his own proper Goods Likewise if an Executor or Administrator sued doth plead to the Action Plenè Administravit and upon Tryal it be found against him in this Case if he have any of the deceaseds Goods left in his hands the Execution shall be of them but if he have none such then the Execution shall be and he shall be charged for so much as is found to the value thereof to be in his hands of his own proper Goods But where one is sued upon a Promise made by the Testator and he plead Non Assumpsit to it or where he is sued upon a Deed made by the Testator and he plead Non est factum to it or the like and these issues upon Tryal are found against him or when he shall confess the Action or suffer a Judgement to pass by default against him or plead any vain Plea In all these Cases he shall not be chargeable of his own Estate neither shall the Judgement and Execution in these Cases be de bonis Propriis but de bonis Testatoris only for the Debt and de bonis Propriis for the Costs And yet if an Executor or Administrator shall intreat a Creditor to forbear his debt until a day and then promise to pay him by this promise he hath made himself chargeable as for his own debt howbeit it shall be allowed him upon his account And if a debt be recovered against one who dieth before Execution sued leaving Goods sufficient to satisfie then shall not the Land descended to the Heir be charged therewith nor by like reason any Land conveyed after Judgement Or if a Creditor be made Executor by his Debtor and pay himself part out of the Goods he cannot sue the Heir for the rest because the debt cannot be apportioned but otherwise he may 8. In all Cases where a man is charged of his own Estate and the Execution be de bonis Propriis the Judgement is ever de bonis Testatoris And the method or form of proceedings in such cases is this viz. The first Execution is against
to be paid 9. Touching Debts due for Rent upon Leases what the Law in that Case is 10. Debts for Servants wages payable before Legacies 11. Covin in an Executors payments shall not prejudice a Creditor 12. Mortuary what it is when where how much and in what Cases payable 13. Law-Cases relating to this Subject 1. ALl the Debts must be paid before any Legacies be paid or delivered and if there be not enough over and above the Legacies to pay all the debts then and in that Case any thing given by way of Legacy may be sold for payment of the Debts and in such Case the Legataries must be content to lose their Legacies 2. In the first place the Executor or the Administrator if he be a Creditor to the deceased shall be preferred before others so that he may deduct to satisfie himself first although other Creditors lose their whole debt thereby specially if his debt be in equal degree with the other debts so that an Executor may allow his own debt in prejudice of other like Creditors if he hath made an Inventory and in case he be not Executor of his own wrong Understand this especially when the debts are of equal degree for if the Testator be indebted to other men by Statute Judgement or Recognizance and to the Executor only by Bond or Specialty then may he not first pay himself unless there be Goods sufficient to pay both him and them But by the Civil and Ecclesiastical Laws the Executor is in the same case with other like Creditors 3. If there be any debt due to the Crown and the King Commence his Sute for it before any other man can get a Judgement for his debt he shall be satisfied before any others neither is it in the Election of the Executor to prefer any other debt due to any Subject So that if the Executor be Sued by any Subject for any such debt he may plead in Bar of the Sute That his Testator died thus much in debt to the King shewing how c. and that he hath not Goods surmounting the value of that debt And if the Sute be not so by way of Action as that the Executor hath a day in Court to plead but be by way of suing Execution as upon Stat. Merchant or Staple then is the Executor put to his Audita Querela wherein he must set forth this matter But this priority of payment of the Kings debt before any other is to be understood of such of the Kings debts only as are of Record and not of summs of money due to the King upon Wood-sales or Sales of his Minerals for which no Specialty is given or of Amercements in his Courts Baron or Courts of his Honours which be not Courts of Record or of Fines for Copy-hold Estates there or of mony upon the Sale of Strayes within the Kings Manors or Liberties or of forfeitures to the Crown of debts by Contract due to any Subject by Out-lawry or Attainder until Office thereupon found But of Fines and Amercements in the Kings Courts of Record there is no question but they are debts of Record 4. When the King is satisfied then must the debts of the Subject be paid if there be Goods of the deceased sufficient remaining and that in this order or method First before other personal debts whether they be due by Obligation Bill or otherwise Judgements and Condemnations are to be discharged that is the debts due by Record by any Judgement had against the deceased in any Judicial proceeding in any Court of Record Nor is it any Plea for a Creditor by Statute to say that his Statute was acknowledged before the Judgement and so is more ancient for a Judgement though latter yet being more puisne is to be preferred before a Statute in time precedent But if this Judgement be satisfied and is only kept on foot to wrong other Creditors or if there be any Defeazance of the Judgement yet in force then the Judgement will not avail to keep off other Creditors from their debts And here Note that between one Judgement and another had against the Testator precedency or priority of time is not material but he that first sueth Execution shall be preferred and before any Execution sued it is at the Election of the Executor to satisfie which Judgement he will first And here observe farther that this is to be understood of Judgements only against the Testator and not of any against the Executor himself also that what is said of a Testator in Case of an Executor immediate is to be understood likewise of the Testators Testator in Case of the Executor of an Executor Again the foresaid respect to debt by Judgement is not to be restrained or limited only to the Four Courts at Westminster but extends it self to Judgement in all other Courts of Record as in Cities and Towns Corporate having Power by Charter or Prescription to hold Plea of Debt above Forty shillings for though Execution cannot be there had of any other Goods than such as are within the Jurisdiction of that Court yet if the Record be removed into Chancery by a Certiorari and thence by Mittimus into one of the Benches then Execution may be had upon any Goods in any County of England Again Debts upon Specialties must be paid before debts upon Contract and debts upon Record must be paid before debts upon Specialties also a Judgement in a Court of Record shall be paid before Statutes which are but private Records as also before Recognizances acknowledged by Assent of the parties Likewise a debt upon or after a Recovery though it be a latter debt shall be paid before a precedent debt due by Recognizance or Statute because although they are both Records yet the Judgement in the Kings Court upon Judicial proceeding is the most notorious and more eminent in degree than a Statute or Recognizance taken in private by consent of the parties and therefore shall be preferred before it 5. In the next place Debts due by Statutes or Recognizances entered into by the deceased are to be satisfied for the debt due upon Statute Merchant and Recognizance is to be discharged if there be Assets before any Personal Debt For that by vertue of the Recognizance not only the person of the Debtor is obliged but also after the expiration of the day of payment the moveable Goods of the Debtor may be apprehended and sold for satisfaction of the debt Here Note that a Statute and Recognizance standing in equal degree it is at the Executors Election to give precedency to which he will neither is it material which of them was first or last nor between one Statute and another doth the time or antiquity give any advantage as touching the Goods though touching the Lands of the Conusor it doth but as for his Goods in the hands of the Executor who first seizeth them by
be in the Debet and Detinet because he is bound by special words in the Obligation and here the debt which in the time of the Administratrix occurr'd is her debt and in Dyer 6 Ed. 6. 81. the Action is brought in the Debet and Detinet for Rent Arrear in the time of the Executor and admitted to be good Popham accord For the being charged with the Rent in her time it accrews by reason of the Profits of the Land which she her self received and therefore she is charged having quid pro quo For if an Executor hath a Lease for years of Land of the value of Twenty pound per Ann. rendring Ten pound per Ann. Rent it is Assets in his hands only for Ten pound over and above the Rent Fenner agreed to this Opinion and to that purpose cited 10 H. 6. 11. That the Husband shall be charged after the death of the Feme for Rent Arrear in his own time because he received the Profits of the Land So as the Rent grew due in respect of the occupation and taking of the Profits And therefore she is chargeable and not meerly as Executrix Clinch agreed with them wherefore it was then adjudged for the Plaintiff Note That afterwards this Judgement was reversed in the Exchequer Chamber for the point in Law For all the Judges of the Common Bench and Barons of the Exchequer held That she ought to be charged in the Detinet because she is charged only by the Contract of the Intestate 5 Co. 31. The Case was One died Intestate in the County of York and a Stranger prayed Letters of Administration to be granted to him which was Repealed by the Delegates at York there was an Appeal to the Court of Delegates in the Chancery who did Repeal the former Sentence at York and adjudged that the Party made no Will and granted Letters of Administration to him who Appealed to them The Arch-Bishop of Canterbury granted Administration to a second person and the Arch-Bishop of York to a Third person who made a Release unto the Debtor of the Intestate upon which Release debt was brought by the first Administrator against the Defendant who pleaded the Release made to him And whether this grant of Letters of Administration by the Judges Delegates were good or not was the Question But the better Opinion of the Court was That the Letters of Administration which were granted by the Judges Delegates was not good but there being Bona Notabilia the Administration was to be granted by the Arch-Bishop And it was said That if the Party who died Intestate had Goods in several Provinces both the Arch-Bishops there having a Peculiar might grant Letters of Administration and although the King be Supream Ordinary and by Delegates may do many Acts yet the Court of Delegates cannot do this nor have they power to Prove any Wills for the power of the Judges Delegates is Potestas Delegata corrigere non exequi And the Court said That it was adjudged in one Brakenburies Case That the Judges Delegates had not power to grant any Letters of Administration An Exception was taken to a Declaration because the Plaintiff conveyed his Interest to an Administrator to whom the Arch-Bishop of Canterbury did grant the Administration of all the Goods of the Lessee and did not shew how the Arch-Bishop granted it either as Ordinary or by his Prerogative And this was held by all the Court a material Exception But it was afterwards alledged That all the Presidents in this Court viz. B. R. and in C. B. were so in general without special shewing how and for that they would not change the Presidents they disallowed the Exception And in this Case it was held That if an Administrator doth grant Omnia bona catalla sua a Term which he hath as Administrator doth not pass for it is not suum but he hath it in right of the Intestate But if one hath a Lease as Executor or Administrator of the Mannor of D. and he granteth all his right and interest in the Mannor the Term which he hath as Executor c. doth pass for he had no other Right in it and his intent is to pass it but by general words it shall not pass Debt against the Defendant as Administratrix she pleaded Plenè Administravit the Jury found That the Intestate was indebted to divers by Obligations and that after his death the Defendant had taken in the Obligations and had obliged her self to pay the greater part of the summs contained in the Obligations at certain dayes to come and for the residue had promised to the parties That in consideration of delivery in of the said Obligations that she would pay c. And by the Opinion of Anderson Windham and Periam it was held clearly a good Administration so that the property of the Goods of the Intestate to that value were altered and changed in the Defendant Action Sur Trover And Declares as Administrator of J. S. and that Administration was committed to him by A. B. Official to the Bishop of Peterborrough and sheweth not that he was Ordinary of the Place or that the granting of Administration did belong to him and this matter after Verdict was alledged in Arrest of Judgement but because divers Presidents had been so and that such Declarations had been allowed the Court did give Judgement for the Plaintiff Debt as Administrator to one Philips and Declares That Administration of the Goods of Philips was committed to him per Adrian Vane Sacrae Theologiae Doctorem such a day apud Monmouth and the Plaintiff recovered in the Common Bench by default and Writ of Errour was thereon brought and the Errour Assign'd because it is not shewn that Vane was Ordinary of Monmouth nor that the committing of Administration appertained to him and in regard it was in a Declaration which ought to be certain and he is not a Bishop nor any person who may be intended to be the Ordinary the Judgement was therefore reversed It was moved by Coke the Queens Atturney That the committing of Administration being by the Arch-Bishop although he had not Goods in divers Diocesses because it is in his Province wherein he hath Jurisdiction it is not void but only voidable by Sentence and it is not like to an Administration committed by another Bishop of the Goods of a man who died in another Diocess or who had Goods in divers Diocesses and this difference hath been taken and agreed in the Queens Bench c. But the Justices said it was all one and the Administration is void in both cases and not voidable only Debt upon an Obligation of One hundred pound one of the Defendants was Out-lawed the other pleaded that he who was Out-lawed was made Executor and solely Proved the Will and Administred and that the Defendant as Servant unto him took divers of the Testators Goods by his Delivery and by his appointment had sold them
remembred them But for the foresaid Reasons it was adjudged for the Plaintiff That those Lands well passed by the Will Suppose a Man hath Two Sons both named John and conceiving his Eldest Son to be dead he Deviseth his Land by his Will to his Son John generally when in Truth the Eldest Son is living In this Case the Younger Son may alleadge and give in Evidence the Devise to him and may produce Witnesses to prove the Intent of his Father And if no Proof can be made the Devise shall be void for the uncertainty of it Glanvile Serjeant prayed the Opinion of the Court in this Case A Man had Issue a Son and a Daughter and Devised his Lands to his Son in Tail and if he dyed without Issue That it should remain to the next of his Name and dyed The Son dyed without Issue the Daughter being then Married whether she should have the Land was the Question And held per Curiam That she should not For she had lost her Name by her Marriage but it should go to the next Heir-male of the Name But if she had not been Married at the Time of her Brothers death the Daughter should have had it for she was the next of the Name One Devised certain Lands in N. in Tail the Remainder to the next of the Kin of his Name and at the Time of the Devise the next of his Kin was his Brothers Daughter who was then Married to I. S. the Devisor dyed The Tenant in Tail dyed afterwards without Issue Whether the Daughter should have the Land was the Question upon a special Verdict and adjudged without Argument that she should not For she is not now of the Name of the Devisor but of her Husbands Name But if she had been unmarried at the Time of the Devise and death of the Donor although she had been Married at the Time of the death of the Tenant in Tail without Issue yet she should have had the Land Wherefore it was adjudged accordingly Ejectione Firmae For certain Lands in A. upon Evidence to a Jury a Devise was shewn of an House with the Appurtenances and thereby Land in the Field was claimed And Popham doubted whether it should pass But Fenner said That it well might pass And that upon Demurrer in 28. Eliz. it was adjudged accordingly The Defendant then to make it clear shewed That the House was Copyhold and the Land Freehold And the whole Court thereupon conceived That it could not be said Appurtenant although it had been used with it Wherefore the Plaintiff was Nonsuited In the Case between H. and H. all agreed the Case of 13. H. 7. That a Testators Devise to his Heir of his Land after the death of his Feme is a good Devise by Implication to the Feme of that Land during her life for it appears he intended his Heir should not have it until the death of his Feme And none other can have it besides the Feme And therefore it is a good Devise to the Feme by Implication But if such a Devise had been to a Stranger after the death of his Feme it might peradventure have been otherwise for the Heir in the Interim might have had it Note That the Opinion of all the Justices was That if one make his Testament wherein are these words viz. I Release all my Lands c. to A. and to his Heirs It is a good Devise of the said Lands to A. and his Heirs Upon a special Verdict the Case was this A Woman Seised of Lands made her Will and devised the same to one and his Heirs after they Intermarry After Marriage the Woman intending to revoke her Will doth revoke it by words after Marriage and saith That her Husband shall not have the Land by her Will and after dyes Whether the Husband by that Will or the next Heir to his Wife shall have the Land was the Question The Case was Argued Pro Con several Arguments on both sides In fine it was Adjudged That the Will was void and that the Husband could take nothing thereby A Man Devised his Lands to his Wife from Year to Year until his Son I. come to the Age of 20. Years and dies the Wife enters I. dies before he attain the Age of 20. Years And it was moved by Harper whether her Interest were thereby determined And it was held by all the Justices That by the death of the Son the Estate of the Wife was determined and that she had no longer any Estate therein For it is to be intended that the Will of the Devisor was That his Wife should have the Land during the Minority of his Son for that he himself could not Legally dispose of the Land being within Age. And Dyer said That by these words de anno in annum It is intended that the Will of the Devisor was That the Interest of the Wife should determine by the death of his Son But if the Words had been until his Son should Come or might Come to that Age of 20. Years then notwithstanding his death the Estate of the Wife had continued A. Seised of the Mannor of Chessam extending into Chessam and the Town of Hertford and also of Lands in Hertford Devised by Will the Mannor of Chessam to B. his Eldest Son in Tail and the Lands in Hertford to C. his Younger Son It was held by all the Justices That the Younger Son should have all that part of the Mannor of Chessam which lay in the Town of Hertford A. Devised that his Lands should descend to his Son but Willed That his Wife should take the Profits thereof until the full Age of the Son for his Education and bringing up and dyed The Wife Married another Husband and dyed before the full Age of the Son It was the Opinion of the Justices in this Case That the second Husband should not have the Profits of those Lands till the full Age of the Son For nothing is Devised to the Wife but a Confidence and she is a Guardian or Bailiff for to help the Infant which by her death is determined and the same Confidence cannot be transferred to the Husband A Man Seised of a Messuage to which a Garden and a Curtilage did belong Enclosed with a Wall and there was no way to the Garden but through the Messuage He Devised the Messuage to his second Son in Fee not mentioning the Garden nor Curtelage nor saith cum pertinentijs It was Adjudged in this Case That the Garden and Curtelage did pass by this Devise They said a Curtelage is parcel of the House as a Stable and a Dovehouse and the Garden shall pass because it is as well for Necessity to it as for Pleasure A. Seised of Lands had Two Daughters and Devised the Lands to the Eldest and her Heirs that she pay to her Younger Sister yearly 30 l. It was the Opinion of all the
8. A Man Seised of a Messuage holden in Socage in Fee Devised the same by these words I Devise my Messuage where I dwell to A. B. and her Assigns for 10. Years and A. B. shall have all my Inheritances if the Law will In this Case the Devise in Fee of the Messuage is good and by the general words of the Will all his Inheritances do also pass 9. If a Man Devise Lands to one for ever there he hath a Fee for such an Estate might be conveyed by Act Executed But if he further Devise That if the Devisee do such an Act that then another shall have the Land to him and his Heirs the same is void for when as he hath disposed of the Estate in Fee to one he hath not power after in the same Will to dispose the same to another it being a Rule in Law That such an Estate which cannot by the Rules of the Common Law be conveyed by Grant Executed in his life time by Advice of Council learned in the Law such an Estate cannot be Devised by the Will of a Man who is presumed to be void of Council 10. A Man having Lands in Fee-simple and goods to the Value of 5 l. only Devised to his Wife all his Estate paying his Debts and Legacies his Debts and Legacies amounting to 40 l. It was Adjuged in this Case That all his Lands did pass by the Devise and that the Devisee had a Fee-simple in the Lands the word Paying enforcing it for they are to be paid presently which cannot be if the Lands pass not in Fee And if a Man Deviseth all his Rents It was held That all his Lands do pass 11. Note That by intendment of Law a Devise shall be for the benefit of the Devisee and not to his prejudice As if Land to the Value of 3 l. per annum be Devised to A. and that A. shall pay out of it 50 s. per annum In this Case A. hath but an Estate for life for he may pay it out of the Profits of the Lands and is sure to be at no loss But if it be Devised to B. for life the Remainder to A. paying 50 s. per annum out of it In this Case A. hath a Fee-simple by Implication because after the Payment thereof A. may dye before he can receive satisfaction for the same out of the Profits of the Land and therefore such Devise shall be a Fee-simple because the Law intends that the Devise was for the benefit of the Devisee 12. Note also That if a Man hath Lands in Fee and Lands for Years and he Deviseth all his Lands and Tenements the Fee-simple Lands pass only and not the Lease for Years 2 If a Man hath a Lease for Years and no Freehold and Deviseth all his Lands and Tenements the Lease for Years passeth 3 That if one Deviseth his Lands which he hath by Lease to his Executor for life the Remainder over that there ought to be a special Assent thereunto by the Executors as to a Legacy otherwise it is not Executed 13. A. Devised his Lands in London to his Son and his Heirs after the decease of his Wife and in Case his Daughter should Survive his Wife and his Son and his Heirs that then the Daughters should have it for Life and after their death I. and R. should have the same and that they should pay 6 l. 16 s. yearly to the Company of Merchant-Taylors to be disposed of to Charitable Uses In this Case three Points were Argued 1 Whether the Wife had an Estate for life by Implication of the Will And it was Resolved That she had 2 Whether the Son had a Fee-simple or Fee-tail And it was Resolved That he had a Fee-tail by Implication of these words viz. if his Daughters Survive his Wife and his Son and his Heirs whereby it is plainly implyed That the Heirs there intended are the Heirs of his Body and not his Heirs in Fee for so long as the Daughters live the Son could not dye without a Collateral Heir 3 What Estate I. and R. have after the death of the Daughters And as to That it was Resolved That they have a Fee-simple by Reason of the Annual Payment of Money and it is not to be regarded what Annual Value the Land is of over and above the Sums they pay for every Sum of Money paid or payable doth cause the Devisee to have a Fee-simple And Coke Chief Justice said That a Devise to A. and his Successors is a Devise of a Fee-simple without the word Heirs because it implyes a Fee-simple although it wants the express words Between L. Plaintiff and B. Defendant L. Seised of Land in Fee Devised it unto Two Persons Equaliter and to their Heirs Whether this made them Joynt-Tenants or Tenants in Common was the Question It was holden by the whole Court That they were Joynt-Tenants and not Tenants in Common A Man Seised of Lands Devised them by his Testament to his Wife to dispose and imploy them for her and his Sons at her own Will and Pleasure And it was held by Dyer Weston and Welch That she had a Fee by such words as if he had Devised the Lands for ever For the Construction of Law supplies the defect in these words of the Devisor according to his meaning And it was held by Dyer and Welch That the Estate in her is Conditional because these words ea intentione make a Condition in every Devise but not in a Feofment Gift or Grant unless it be in Case of the King And these words do amount as much as to say she should not convey it away to a Stranger but keep it and give it to his Sons S. Seised of Land in Fee holden in Socage and Devisable in Gavelkind Devised it to his Feme for her life paying 3 l. per annum to T. his Son during his life and that he should take but Two Load of Wood for Fire-boot And if she dyed before the said T. then he Devised all his Lands to R. his Son paying to the said T. 3 l. per annum and paying to such one of his Sisters 20 s. and to another Sister 20 s. The Feme dyes R. enters The Question was what Estate R. had by this Devise And it was Adjudged he had a Fee For when he Devised it to his Feme for life expresly c. and to R. generally without limiting the Estate and apppointed him to pay to T. 3 l. per annum during his life That carries in it an Intendment that he should have Fee especially when his Father therein further willed That his Son R. should pay two other Sums in Gross and none of them to be out of the Profits it is by Intendment and by Implication a Fee wherefore upon the first Argument it was Adjudged for the Defendant for they said That these Things which have been so often Adjudged ought
One Devised all his Lands to another and the Heirs of his Body begotten and after in the same Will Devised That if the Devisee die the said Lands should remain to another in Fee The Court held That the Devisee hath notwithstanding an Estate Tail by the first words and no Estate pass'd by the last words One Devised his Land to W. his Son for Term of his Life and after his decease to the Men-children of his Body and in case the said W. dyed without any Man-child of his Body that then the Land should remain to another c. The Testator dies W. dies without Issue Male of his Body c. and the Question was What Estate he had the Justices of the Bench held that he had an Estate to him and the Heirs Males of his Body F. Seised of Land in Gavelkind had Three Sons and Devised part to one part to another the other part to the Third and if either of them dyed without Issue the other should be his Heir It was Adjudged an Entail in each and a Fee-simple by the words Heir to other And so it was Adjudged Hill 32. Eliz. in Carters Case C. B. If a Devise be made to one and his Heirs and in Case that he hath Issue a Daughter that she shall have the Lands If the Devisee hath Issue a Son and a Daughter and die the Son shall have the Land and although the Daughter afterwards take a Husband and hath Issue a Son he shall not eject the other CHAP. XI Certain Cases in Law touching Devises of Land for Life only 1. A Devise of Land to one not saying How long is an Estate only for life 2. Power of Distraining Devised to one without other words on Non-payment of a certain Annual Sum is only an Estate for Life 3. A Devise of Land to one and his Heir in the Singular Number or to one and his Children is but an Estate for life 4. Several Instances of Law touching Estates only for Life by way of Devise 5. Several Instances of Estates for Life by Implication Devised 6. A Devise of Land to one thereby obliged to a present Payment Creates a Fee-simple But if Payment be to Issue out of the Profits of the Land Devised it makes only an Estate Tail 7. A Devise of an Estate for Life in Reversion 8. A Devise of Two Estates for Lives the one to some in Being the other to others in Reversion 9. A. Devise of Lands in Esse or Posse Conditioned upon an Annual Payment to be made by the Devisee during his or her life which Devise is made by one in the Remainder in Fee and not in Possession doth pass an Estate only for life 10. A Devise by general words of all a Mans Estate Mortgages c. may pass as to the Real no more than an Estate for Life and not a Fee by Implication 11. The Law ever accommodates the Testators words whatever they be as nigh as possible to his intent and meaning 1. IF a Man Deviseth his Land to A. B. and say not how long nor for what Time by this Devise A. B. hath an Estate only for Life in the Land But if a Man Devise his Land to A. B. and his Assigns without saying For ever it hath been a Question whether he hath only an Estate for Life as was held by some or a Fee-simple as hath been Affirmed by others 2. In the latter part of the last Chapt. it was said That it was an Estate Tail of the Rent if one Devised to A. B. that if he and the Heirs of his Body be not paid 20 l. Rent yearly he and they shall distrain But now if the Devise only be That if A. B. be not paid 20. l. yearly he shall distrain c. by this Devise A. B. hath only an Estate for Life Likewise if one devise a Rent of 10 l. out of his Land to be paid quarterly and say not how long the Rent shall continue this is but an Estate in the Rent only for Life 3. If one Devise his Land to A. B. for his Life or to him without any more words or to him and his Heir in the Singular Number or to him and his Children he then having Children By all these and such like Devises A. B. hath only an Estate for life in the thing Devised And if one Devise That A. B. shall have and occupy his Land in D. and say not how long by this Devise A. B. shall have the Land as aforesaid only for life But If I Devise that A. B. shall enter into my Land and say no more by this Devise A. B. hath no Estate at all but power to enter into the Land only 4. A Man having a Son and a Daughter dies Lands are Devised to the Daughter and the Heirs Females of the Body of the Father by this Devise the Daughter hath only an Estate for her life for there is no such person for she is not Heir Likewise if one Devise his Land in D. unto A. B. for life and after to the next right Heir in the Singular Number and to his right Heirs for ever by this Devise A. B. hath only an Estate for life Or if one Devise Land to A. B. for life and after to the next Heir Male of A. B. and to the Heirs Males of the Body of such next Heir Male by this Devise also A. B. hath but an Estate only for life But if he Devise his Land to A. B. for his life and after to the Heirs or to the right Heirs of A. B. by these Devises A. B. hath the Fee-simple of the Land And if it be to him for life and after to his Heirs Males then he hath an Estate Tail But if one Devise Land to F. G. and M. his Wife and after their decease or the Remainder to their Children by this Devise whether they have or have not Children at the time F. G. and M. his Wife have Estates only for their lives 5. If one Devise his Land to A. B. in Fee after the death of C. D. being his Son and Heir apparent by this Devise C. D. hath an Estate for life by Implication and till the Devise take effect the Law gives it to him by descent The Law is the same where one doth devise his Land to A. B. after the death of his Wife by this Devise the Wife hath an Estate for life by Implication Likewise if a Man Devise in this manner I give my Goods to my Wife and that after her decease my Son and Heir shall have the House where the goods are it is held That by this Devise the Wife hath an Estate for life in the House by Implication But if a Man Devise his Land to A. B. after the death of I. G. a Stranger to the Devisor it seems that by this Devise I. G. hath no Estate at all by Implication
and that this doth but set forth the Time when the Estate of A. B. shall begin and that the Intent of the Testator is That his Heir shall have it until that Time The Reason of the difference is because a Man is bound to provide for his own not so for a Stranger and so the Law presumes what Nature doth teach 6. If one Devise his Land in this manner viz. I give my Land in D. to A. B. to the intent that with the Profits thereof he shall bring up my Child or my Children or to the intent that with the Profits thereof he shall pay to I. M. 10 l. or to the intent that out of the Profits thereof he shall pay yearly 10 l. By these Devises A. B. hath only an Estate for life albeit the Payments to be made be greater than the Rents of the Land Otherwise it is in case the Sum of Money is to be paid presently and not appointed to be paid out of the Profits of the Land in which case A. B. should have a Fee-simple in the Land 7. If the Father of A. be Tenant for life of Land the Remainder to A. in Fee And A. devise the Land to his Wife Rendring for her natural life 5 l. to the right Heir of the Father of A. by this Devise the Wife of A. hath an Estate for life after the death of his Father 8. Land was Devised to Husband and Wife and after their decease to their Children they then having Issue a Son and a Daughter In this case the Husband and Wife have but an Estate for Term of their lives the Remainder to their Children for life and no Estate Tail for the intent of the Testator here shall be construed according to the Rules of the Common Law and by the Common Law the Husband and Wife have but an Estate for their lives with a Remainder to their Children for their lives 9. The Son Seised of a Remainder in Fee after the death of his Father who was Tenant for life devised the same by these Words viz. I Devise to D. my Wife the Lands which I have or may have in Reversion after the death of my Father paying therefore yearly during her life to the right Heirs of my Father 40 s. and dyed his Father living It was the Opinion of the Court That no Estate passed by this Devise but for Term of the life of the Wife and that she should not pay the 40 s. until the Reversion did fall after the death of the Father 10. A. Seised of divers Lands in A. B. and C. the Lands in C. being in him by Mortgage forfeited Devised the Lands in A. and B. to several Persons and then adds this Clause in his Will All the rest of the Goods Chattels Leases Estates Mortgages whereof he was possessed he devised to his Wife after his Debts and Legacies paid made his Wife his Executrix and dyed The Wife entered into the Mortgaged Lands and devised it to the Defendant and his Heirs and dyed The Question was whether the Fee passed to the Wife by this Devise by the Name of all his Estate Mortgages c. It was the Opinion of the whole Court That an Estate for life only passed unto her and not a Fee by Implication of the general words in the Will 11. Note That there is a difference when one Deviseth his Term for life the Remainder over and when a Man Deviseth the Land or his Lease or Farm or the Occupation or Use or Profits of his Land For in a Will the intent and meaning of the Devisor is to be observed and the Law makes construction of the Words to answer and satisfie his intent and puts them into such order that his Will shall take effect And when a Man deviseth his Lease to one for life it is as much as to say He shall have so many Years in it as he shall live and that if he dyeth within the Term that another shall have it for the Residue of the Years And although at the beginning it is uncertain how may Years he shall live yet when he dyeth it is certain how many Years he hath lived and how many Years the other shall have and so by a subsequent Act all is made certain A Man made his Will in this manner Item I give my Mannor of Dale to my second Son Item I give my Mannor of Sale to my said Son and his Heirs what Estate he had in the Mannor of Dale was the Question It was held by Dyer Weston and Welch That in the first he had but an Estate for life for that it is as much as to say as if he would give his Mannor of Dale to him for his life for that as much is included therein without saying His Heirs And that Item seems a new Gift to a greater degree in the second place to make amends for the other Brown e Contra and that the Item is a Conjuntion Copulative and that the word Heirs expressed in the latter Clause extends to both the Mannors But if the Word Heirs were put in the Gift of the former Lands it would be otherwise Dyer if in the first place or Clause there were not any person named but that the words were Item I give the Mannor of D. Item I give the Mannor of S. to I. K. and his Heirs there and in that Case it would refer to both the Mannors W. C. by his Will Devised a Messuage in these words viz. I give to A. L. my Cousin the Fee-simple of my House and after her decease to W. her Son The Judges held That A. L. had an Estate for life and her Son a Fee-simple in Remainder And so it was adjudged R. D. Seised in Fee of a House and Possess'd of Goods made his Will in these words viz. The rest of my Goods Lands and Moveables whatsoever after my Debts Legacies and Funeralls paid to my Three Children I. T. and M. equally to be divided amongst them And it was Adjudged That they have an Estate only for life in the House and are Tenants in Common not Joynt-tenants CHAP. XII Certain Cases in the Law touching Devises of Leases or for a Term of Years 1. In what Case the Word Shall is taken for Should in Devise of a Term. 2. A Devise of Lands for 99. Years may be only for no more of that Term then the Issue Male of the Devisee shall continue 3. The Devise of a Term to one and his Heirs shall go to the Devisees Executors or Administrators and not to his Heirs 4. Chattel-Leases and Leases for Years pass not by a Devise of all his Lands and Tenements 5. By a Lease for Years Devised for Life doth pass the whole Term yet is it not an Estate for Life 6. The whole Interest of a Lessee in his Lease-Lands doth pass by a Devise of his Lease Term Farm Profits Tenure or Occupation thereof as
or Years and therefore the whole shall pass to the Devisee A Man possessed of a Term of Years Devised the same in these words viz. The residue of my Goods Moveable and Immoveable I give to my Son John whom I make my Executor and to him I give my whole Years that I have in my Farm of M. and if he die I give it to my Daughters John the Executor and Devisee proveth the Will claiming the Lease according to the Will and dyeth Intestate His Administrator for good Consideration Selleth the Lease that remains Whence the doubt or Question was whether the Daughters or the Assignee should have the Lease The Case was referr'd to the Two Chief Justices and Justice Walmesley who all agreed That the Assignee should enjoy the Lease and not the Daughters Q. Whether a Devise to them in such manner be void One made a Lease for life after Leased the same to A. for 99. Years if he so long lived to Commence after the decease of the Lessee for life And if A. dyed during the said Term of 99. Years or the Lease otherwise determined and after the death of the Lessee for life then the Lessor granted for him and his Heirs that the Land should remain to the Executors of A. for 20. Years Lessee for life dyes A. Leased for 20. Years Rendring Rent and dyes Intestate B. takes his Administration and brings Action of Debt for the Rent It was Adjudged That it doth not lye for it seem'd to Gaudy and Yelverton That the Contingent of 20. Years was never Vested in A. But if A. had made Executors he might take by way of Purchase Executors being in name of Purchase As in Cranmers Case 14. Eliz. Dyer But if it had been limited to the Executors for Payment of the Debts of A. or the like then by the intent apparent there would be an Interest in A. and in the Executor for the use of A. as Popham and Fenner agreed in point of Law as to an Action of Debt A Man made his Will in this manner viz. I have made a Lease for 21. Years to I. S. paying but 20 s. Rent And it was held That it was a good Lease by the Will For that Word I have shall be taken in the Present Tense as is the word Dedi in a Deed of Feofment A Man Seised of a Mannor part in Demesnes and part in Lease upon Rent Suit and Service Devised by his Testament to his Wife during her life all his Lands in Demesnes and also by the same Testament did Devise to her all his Services and high Rents for 15. Years and further by the same Testament did Devise all his Mannor to another after the death of his Wife And it was Agreed by all the Justices That the last Devise took not effect for any part of the Mannor till after the death of the Wife and that the Heir after the Expiration of the 15. Years and during the Wives life shall have the Services and Chief Rents If a Man possessed of a Lease for Years of Land Devise the same to one for Life the Remainder to another although the first Devisee hath the whole Estate or Term in him and no Remainder can depend thereon at Common Law yet it is a good Devise to the second Devisee by way of an Executory Devise If certain Lands be Devised to one he cannot take them without the delivery of the Executor Or if a Man be possess'd of a Lease for Years of Land and Devise the same to another the Devisee cannot have it or enter upon it without the Executors or Administrators Consent CHAP XIII Law-Cases touching Devises of Reversions or Remainders 1. What Devise of a Reversion is good and what Remainder may be Devised 2. As the Limitation so the Devise of a Remainder after a Fee is void 3. In what Case the Devise of a Remainder of a Chattel-real may be void 4. The Devise of a void Limitation is a void Devise 5. A Devise in Remainder of Goods is void 6. In what Case the Devise of a Remainder over in Fee after Lease for Life made by Executors is void 7. The Difference between a Remainder Entail'd by Devise and Entail'd by Deed. 8. A Remainder Devised to a Church accrews to the Parson of that Church 9. A Refusal in one to take by a Devise shall not prejudice another in Reversion or Remainder 10. How the Devisors Daughters Issue without naming her shall have the Devised Remainder before the Issue of his Sons 11. A Termer of a 100. Years to come Deviseth it to one for Life the Remainder over it is a void Remainder 12. A Devise of a Remainder in Fee after a Lease which Devise is made by him in Remainder is a void Devise if the Lessor Re-enter 13. Several Cases wherein he in Remainder may Devise his Remainder 14. Fee-simple Devised to one the Remainder cannot be Devised to another albeit the first Devise were but Conditional 15. A Term of Years by way of Remainder is Devisable but a Devise by way of Entail with Remainder over is void 16. Lessor may Devise the Reversion of Land for Life notwithstanding a Feofment in Fee 17. Remainder of a Rent-charge in Fee may be Devised to one where the Land out of which the Rent doth arise is Devised to another 18. A Devise may be good for the Reversion of a Term where not for the Rent 19. The Devise of a Remainder may be good where yet an Estate Tail shall precede 20. He in Remainder shall take presently where the Devisee for Life is incapable of taking by Devise 21. Though a Man cannot Devise to himself yet he may Devise a Remainder to his own right Heirs 22. A Man may Devise a Reversion by the Name of all his Inheritance or Hereditaments 23. Devises of Remainders to the next of Blood 24. Where the Devise of a Remainder after the Remainder makes the former Remainder but an Estate for Life 1. IF a Man Devise his Land to B. C. for life the Remainder to the next of Kin or next of Blood of B. C. this is a good Devise of a Remainder Or if a Lessor Disseiseth his Lessee for life and makes a Lease for life to another for Term of life of the first Lessee the Remainder over in Fee though the first Lessee enters yet he in the Remainder may Devise his Remainder 2. If one Devise his Lands to A. so as he render 20 s. per annum to B. and if he fail thereof then his Estate to cease and to remain to B. this Devise is good but the Limitation of the Remainder is void because a Remainder cannot be limited after a Fee Therefore if a Man makes a Lease for Years upon Condition that if the Lessor disturb the Lessee within the Term that the Lessee shall have the Fee and maketh Livery accordingly and after the Lessor doth disturb the Lessee for
Rent where none is in arrear and after Deviseth his Reversion this Devise is not good 3. A Man possessed of a Term for 40. Years Devised that his Eldest Daughter should have the same to her and the Heirs of her Body the Remainder if she dyed without Issue Within the Term to C. his second Daughter in Tail The Eldest Daughter took Husband and dyed within the Term without Issue Her Husband Sold the Term. It was the Opinion of the Court That his Sale thereof was good and that the younger Daughter had no Remedy for it because it was a void Remainder being of a Term which was a Chattel-real and so is to go to the Husband 4. A Lease was made to A. for 41. Years if he should so long live and if he dyed within the said Term that then his Wife should have it for the Residue of the said Years It was held That the limitation to the Wife in Remainder was void for that the Term ended by the death of A. and then there was no Residue to remain to his Wife 5. A Man possessed of certain Goods Devised them by his Will to his Wife for life and after her decease to I. S. and dyed I. S. in the life time of the Wife did Commence Suit in a Court of Equity there to secure his Interest in Remainder A Prohibition was granted in this Case and the Reason was because a Devise in Remainder of Goods was void and therefore no Remedy in Equity for Equitas sequitur Legem It was agreed That a Devise of the Use and Occupation of Lands is a Devise of the Land it self but not so of Goods for one may have the Occupation of them and another the Interest in them 6. Suppose a Man Deviseth a Reversion depending upon an Estate for life to the Parson of D. and to his Successors if the Parson die and after a new Parson be made and the particular Tenant die also the new Parson shall have it Also if a Man Devise Land to one for Term of life the Remainder over in Fee and the Devisee for life refuse yet he in the Remainder may enter but if the Will were That the Executors shall make a Lease for life the Remainder over in Fee and they offer to make a Lease accordingly and the Lessee refuseth he in the Remainder shall not have the Remainder 7. I. S. hath issue Two Sons and dyeth the Elder hath Issue a Daughter who hath Issue a Son and dyeth Land is given by Testament to one for life the Remainder to the next Male of the Body of I. S. begotten the second Son of I. S. shall have the Land and not the Son of the Daughter It would be otherwise if the Remainder were so Entail'd by Deed. 8. If Land be Devised to one for life the Remainder to the Church of D. the Parson of the said Church shall have it And if a Man willeth that after 20. years after the death of the Devisor I. S. shall have the Land in Fee the Heir of the Devisor shall have the Land during the Term and not the Executor 9. A Man Deviseth his Land to his Daughter and Heir being a Feme Covert and to the Heirs of the Woman the Reversion over in Fee and dyeth the Husband refuseth to take by the Devise he in the Remainder entereth he shall retain the Land during the lives of the Husband and Wife but after their decease he Issue of the Wife may enter upon him 10. A Man Seised of Land in Fee hath Issue Two Sons and a Daughter the Father Deviseth the Land to his Wife for Term of life the Remainder propinquioribus de sanguine puerorum of the Devisor the Daughter hath Issue and dyeth the Issue of the Daughter shall have this Remainder and although that the Sons have Issue after yet their Issue shall not have it 11. A Man hath a Term of a Hundred Years to come and he Deviseth this to one for Term of life the Remainder over to I. S. this is a void Remainder it were otherwise if the Devise were that the Devisee shall have the Occupation of the Land during his life the Remainder over 12. A Lease is made for life the Remainder over in Fee reserving Rent by Indenture and for default of Payment that it shall be Lawful for the Lessor to enter and detain during the life of the Lessee he Re-enters for the Rent Arrear he in the Remainder Deviseth the Remainder such Devise of the Remainder is void 13. If Land be given to Two Persons Habendum to the one for life and after his decease to the other in Fee he that hath the Fee may Devise his Reversion thereof Likewise if Land be given to one for life and that after his death it shall descend to I. S. in Fee he may Devise this Remainder Or if a Lease be made dummodo solverit 10 l. to the Lessor for his life he may Devise the Reversion with the Rent Or if a Lease be made to an Infant or Feme-sole for life the Remainder in Fee and the Infant at his full Age or the Feme after Coverture disagree he in Remainder may Devise his Remainder 14. If the Fee-simple of Land be Devised to one the Remainder cannot be Devised to another albeit the first Devise be but Conditional And therefore if a Man Devise his Land to A. B. in Fee so that he pay 100 l. to C. D. And if he fail that then it shall remain to G. D. and his Heirs this Remainder to C. D. is void for upon the Failure of Payment by A. B. the said C. D. may not enter and have the Land but the Devisors next Heir Likewise if Land be Devised to F. G. and his Heirs and if he die without Heirs that then it shall remain to I. M. and his Heirs this is a void remainder 15. A Man may Devise a Term of Years by way of Remainder and the first Devisee cannot hinder the second of the Remnant of the Term. But yet a Man possessed of a Term of Years cannot Entail it by his Will And therefore if a Man Devise his Term to A. B. and his Heirs or to him and the Heirs of his Body or to him and his Issue the Remainder to B. C. this Remainder is void and the Devise is good for the whole Term of Years to A. B. and his Executors 16. A Man Seised of Two Acres in several Towns in one County that is of the one for life and of the other in Fee and maketh a Feofment by Deed of all his Lands in the same County and makes Livery in the Acre in Fee in the name of both the Lessor notwithstanding this may Devise the Reversion of the Acre for life 17. If a Man grants a Rent-charge out of Lands devisable to one for life the Remainder over to the Grantor and his
in Case of Lands Conditionally devised to one and his Heirs for ever or for life the Heir of the Devisor shall keep the Land till the contingent Condition happen to take effect 2. If one Devise Land of the value of 100 l. per annum to A. for life the Remainder to B. paying 50 l. to C. by this Devise B. shall have the Fee-simple of the Remainder upon Condition 3. If one Devise his Land to his Wife for her life and if she live till his Son come to the Age of 25. Years that then he shall have the Land and if she die before he comes to that Age that then A. B. shall have it till his Son come to that Age. A. B. dies before the Wife and after she dies before the Son comes to the Age of 25. Years In this Case the Executors of A. B. shall not have the Land till the Son comes to the Age of 25. Years 4. A. Seised of Lands in Fee had Issue Six Sons and one Daughter and Devised the said Lands to I. S. for 90. Years if the said I. S. and G. his Wife or any of them should so long live the Remainder to P. his Eldest Son and the Heirs Male of his Body the Remainder to these other Sons the Remainder to his Daughter Provided that if the said P. his Son or any of the Sons of the said Devisor or any of the Heirs Males of their Body should endeavour by any Act to Alien Bargain or Discontinue then after such Attempt or Endeavour and before any such Bargain Sale c. were Executed that the Estate of such person attempting c. should cease as if he were naturally dead and that then the Premises should descend remain and come to such person to whom the same ought to come remain and be by the intent and meaning of his Will and dyed P. Levyed a Fine of the Lands he in the next Remainder entered and claimed the Reversion by force of the Devise It was Adjudged in this Case That the Conuzee had the Reversion in him and might maintain an Action of wast because the Proviso of Restraint in the Will of A. was void and repugnant to Law and a Proviso Condition or Limitation ought to defeat the whole Estate and it cannot continue it for part and defeat it for the Residue 5. A Copy-holder of Lands in Borough-English having Three Sons and one Daughter Deviseth his Lands to his Eldest Son paying to his Daughter and every one of his other Sons Five Pounds within Two Years and surrendred to the use of his Will The Eldest Son was admitted and did not pay the Five Pounds within Two Years In this Case it was Resolved 1 That although the yearly Profits of the Lands for Two Year did exceed the Money to be paid yet the Eldest Son had a Fee-simple 2 Although this word Paying in the Case of a Will makes a Condition yet in this Case the Law shall Construe this unapt word Paying a Limitation For if it should be a Condition the same should descend to the Eldest Son and then it should be at his pleasure whether the Daughter or Brothers should be paid or not and therefore in this Case the Law should judg the same a Limitation of which the youngest Son should take advantage 6. A Man Devised Lands to his Wife upon Condition that she should bring up his Son at School c. and that after the death of his Wife the Land should remain to his second Son in Fee and dyed The Wife entered the Condition was broken the Eldest Son after his full Age entered for the Condition broken in this Case it was held 1 That a Condition might be annexed to a will by the Stat. of 32. H. 8. of Wills which gives liberty to a Man to Devise for the advancement of his Wife c. That a particular Estate may be upon Condition though the Remainder be without Condition 3 That he in the Remainder should not take advantage of the Condition but the Heir because he is prejudiced in the Inheritance by the Devise 7. If a Man make Two Men his Executors Proviso that one of them shall not Administer his Goods the Proviso is void because it restrains the Authority which was given by the first part of the will and agrees not with the Law for by Law every Executor may Administer the Goods And such was the Opinion of Baldwin and Egglesfield But Fitzh conceived the Proviso to be good for that he might bring an Action although he did not Administer 8. A Man Seised of Tenements in London Devised the same to Two Persons upon Condition that they should pay to his Wife 10 l. per annum issuing out of the said Tenements at Two Feasts and if the Rent be behind by the space of Six Weeks being demanded that it should be lawful for the Wife to distrain It was held a good Condition and that if the Rent be behind yet the Wife cannot distrain before a demand of the Rent but the Heir of the Husband might enter for the condition broken though the Wife did not demand the Rent A Man Devised his Land to his Younger Son when he should accomplish the Age of 24. Years upon Condition that he should pay 20 l. to the Daughter of the Devisor and if he shall die before the Age of 24. Years then his Eldest Son shall have the Land upon Condition that he pay the said 20 l. and if both his Sons failed that the Land should remain to his Daughter and dyed The Younger Son entered after 24. Years of Age and did not pay the 20 l. to the Daughter the Eldest Brother entered upon him It was Resolved by the Court in this Case That the same was a Limitation and not a Condition and therefore the entry of the Elder Brother was not lawful 10. A Man made a Lease for Years upon Condition That if the Lessee shall Demise the Premises or any part of it other than for one Year to any person or persons then the Lessor and his Heirs to re-enter the Lessee afterwards Devised it by his Will to his Son It was held by the Court That it was a breach of the Condition 11. If Lands be Devised upon Condition of superstitious Uses as to find a Chaplain to say Mass or the like superstitious Uses mentioned in the Will the Remainder over for the like Uses and if they in Remainder perform not the Condition then to forfeit their Estate and the Lands to remain to the right Heirs of the Devisor In this Case it was held That although the Land was Devised but Conditionally to find a Priest to say Mass yet that it was within the Stat. of 1. Ed. 6. Cap. 13. whereby the Lands were vested in the Crown because the said Uses were superstitious Uses to which the Condition of the Devised Lands did refer F. C. Seised of the Mannor of S.
Anne she shall have both And this is the Common opinion from which notwithstanding there are not wanting and they not of the minor DD. who recede in their Judgments and held That a Disjunctive in a Legacy ought to retain its force so as the Executor may be least burdened which seems nothing inferiour to Reason in an impartial ballance yet this may be relyed on as indubitable that where the Disjunctive is placed between two such things as are commonly conceived under the notions of Genus and Species or between the whole and his part then and in such case it shall be taken for a Conjunctive as if the Testator should say I bequeath to my Wife my Plate Jewels or such things as I provided for her the latter words whereof are Generical the former Specifical she shall have both Or if he saith I bequeath to my Wife my Wine which is in the City or in the Port the Port is held as part of the City and she shall have the Wine in both Likewise if any thing be bequeathed to D. E. or F. G. here in this case also the word or shall be taken for the Copulative and so that both of them shall equally take by this Devise unless the one be of nearer kin to the Testator than the other in which case the nearest of kin shall have it for his life the other afterwards or unless it can be proved that the Testator did bear more affection to the one than to the other in which case he to whom the Testator did bear most affection shall be preferred or unless the one of them is not legally capable of the Legacy in which case the word or shall stand as properly it is for a Disjunctive One Devised his Lands to his three Daughters and said further in these words viz. I will that every of them be others Heir by equal portions Whereupon it was doubted when one of them dyed whether the others should hold by survivorship as Joynt-Tenants Or in this case as Tenants in Common The whole Court was of opinion for the latter and not as Joynt-Tenants for that it appear'd the intention of the Donor was such in saying That each should be others Heir by equal portions which could not be if there were a survivor for thereby it is not possible the words of the Will can be of any force Although properly Houses pass not by the name of the Lands yet in a Devise they shall pass by the Name of all the Lands if the intendment be not otherwise by some Expressions of the Devisor for though in a Writ nothing shall be demanded or recovered but according to its proper signification yet in Wills Expressions shall be taken according to the Common intendment Wherefore in a Will by the Devise of his Land all his Houses may pass or not according as it is phrased by the Devisor For if a man Devise all his Lands his Houses shall pass but if he restrain the word Land according to its genuine propriety as Arable Land or doth couple it with Meadow and Pasture in such case the exposition of the word shall be taken according to the common intendment of the Devisor or having both Houses and Lands in A. and B. doth say I bequeath to C. all my Houses and Lands in A. And to D. all my Lands in B. In such case and by such expression the Devisor seems to exclude the Houses in B. out of the Devise to D. which expresly he includes in the Devise to C. Moore succinctly Reports the case thus viz. Debt for Rent the Defendant pleaded nihil debet Whereupon it was found That J. S. being seised of three Houses and other Lands Pastures and Meadows in Watford in the County of Hertford as also of a House and Land in the County of Oxford Devised the same in this manner viz I give all my Capital Messuage in the County of Oxon and all other my Lands and Meadows and Pasture in the Parish of Watford The Devisee brought Debt against the Lessee for years of the Houses in Watford And it was adjudged Maintainable because the word Land comprehends Houses and the Houses shall pass by the Devise CHAP. XX. Cases in the Law touching Legacies of Chattels Personal 1. CHattels Personal may be bequeathed to one for life and afterwards to another in which case the first hath only the use or occupation the other hath only the Propriety thereof So that if one Will that A. B. shall enjoy the use of his Houshold-stuff during his life and after that it shall remain to J. M. This is a good Devise thereof to J. M. But if the thing it self be bequeathed to the first of them then it is otherwise for the gift of a Chattel Personal though but for one hour is the gift thereof for ever Provided the Testator make it Absolute not Conditional 2. Chattels Personal do pass under the legal Notion of Moveables as Chattels Real do under that of Immoveables of both which the Law makes a Distinction into Creatures Living and Things inanimate albeit of the living Chattels Real there can but very few instances be given Such was Wardship in respect of the Tenure of Land As also Villenage for years or that right which the Lord had in the Villain only for a Term who resembled him whom the Civil Law terms Ascriptitius Glebae or one in perpetual Obligation to the Plow on some certain Lands The Real Chattels Inanimate chiefly consist in Houses or Lands or the issues thereof as by Lease for years or by Extent upon Judgments Statutes or Recognizances Or if the Testator had a Term of years in certain Advowsons Tythes Profits of Fairs Markets or Court Leets the Interest is a Real Chattel among the things inanimate likewise a Presentation to a Church upon the next avoidance and before it come to be void is a Real Chattel But of this and Chattels Personal with their respective Individuals the Reader may have a more exact Description if he hath a retrospect to Cap. 6. Par. 3. whereunto he is referred for clearer satisfaction 3. A. B. having two Brothers and one Son makes his Son his Executor and in his Will saith That he would have his Son let the said two Brothers who are the Sons Uncles have all the goods he hath in D. and M. or elsewhere saying withall That all these things he doth leave them for this Reason because he would not that his Son should have any Difference or Controversie with them In this case and by this Devise A. B. seems to leave his two Brothers only what was in common between him and them and no more This interpretation being grounded on the Reason annexed at the close of the Testators words where he saith Because his Son should have no difference or Controversie with them by which Reason he seems to have a prospect of Differences like to arise between him and
to pay full 600 l. to the Legataries though 400 l. of the 800 l. were first given to himself Which differs from the Law as now practised That after Debts paid a Legatary-Executor may first satisfie himself 21. Any words though in themselves of a defective signification yet if such as whence the Testators mind or meaning is rationally deduceable and consequentially Colligeable are sufficient to uphold a Legacy and therefore if a Testator willing to bequeath 100 l. to A. B. doth but say in his last Will and Testament I desire that A. B. would be contented with 100 l. Or that A. B. would be satisfied with 100 l. or the like It is a good Legacy to him of 100 l. 22. An imperfect Speech by the Testator which in it self leaves the sense incompleat either spoken or written by the Testator in his last Will and Testament is legally reduceable to a good Construction for the upholding of a Legacy if the words precedent or subsequent hold good congruity therewith as thus A man in his last Will and Testament inter alia sayes To my Son William 100 l. In the words precedent he had said I leave my Dwelling-House to my Daughter Anne Or in the words subsequent he sayes I give 10 l. to my Brother George In such case albeit the words I Bequeath or I Give or I Leave or the like be omitted in that imperfect Speech relating to his Son William yet in regard they are joyned with the words precedent or subsequent it shall in construction of Law be understood as if they were joyned also to the words relating to his Son William by reason of its congruity therewith and thereby making the sense perfect Otherwise if it were incongruous As suppose the Testator had said That my Son William 100 l. or from my Son William 100 l. And in the words precedent or subsequent he had said as formerly In such case there would be no congruity with the said last imperfect Speech relating to his Son William nor can they be joyned thereto without plain incongruity and therefore in that case the Rule aforesaid would not hold 23. A Testator makes three Executors and appoints one of them by Name to take care of his Funeral for which purpose he doth order him to receive 100 l. before hand The Testator being dead he receives the 100 l. of his Co-executors but doth not disburse above 60 l. about the Funeral The Question is whether he shall retain the other 40 l. to his own use The Answer is Negative for that it belongs to all the Executors alike 24. If a Sum of Money be bequeathed to certain persons on condition of something to be performed the failure of one of them shall not prejudice the Legacy of another as thus viz. The Testator makes his three Sons his Executors and in his Will saith I give to my Neighbour A. B. 100 l. and to such of my Sons as shall come to my Funeral and dyes Neither of his Sons are at his Funeral The Question is whether A. B. shall have the whole 100 l. It is answered in the Affirmative and that there is nothing in this case to diminish any part of the Legacy to A B. But if the words had been I give to A. B. and such of my Sons as come to my Funeral 100 l. In that case A. B. should have only 50 l. The reason of the difference is evident for in the former case the Legacy is given Disjunctively but not so in the latter As hath been formerly stated and Resolved 25. Suppose a Testator in his Will saith I give 10 l. to A. B. And if he chance to loose it I give him 10 l. more In this short case are three points 1 Whether the second Legacy be good 2 Whether the Executor may require caution of the Legatary That he shall so secure the first 10 l. that he may not be lyable to pay him a second 10 l. 3 Whether in case A. B. lose the 10 l. twice or thrice or oftner the Executor be still obliged to pay him 10 l. more The first of these points hath its solution by answering the second and third Now the Law doth not warrant the Executor to require such caution in this case from the Legatary to whom if he should lose the 10 l. more than once the Executor is not obliged to pay a third 10 l. which resolves the first point in the Affirmative 26. A man dying intestate A. B. pretended as if he would take out Letters of Administrations of his Goods the Intestate dyed indebted 100 l. to C. D. So that A. B. might legally have been sued for it if he had Administred to the Intestates Goods as he pretended he would C. D. makes his Will and therein J. G. his Executor and gives 100 l. to the said A. B. saying withall that his Executor might easily satisfie that 100 l. to the said A. B. for that he the said A. B. owed him the said C. D. the Testator 100 l. by reason of his Administration to the said Intestate C. D. dyes After A. B. would not Administer to the said Intestates Estate as he pretended but demanded the 100 l. Legacy given him by C. D. The Question is whether he ought to have it It is resolved in the Negative because it seems to contradict the main intention of C. D. the Testator who gave him that 100 l. as real Administrator to the said Intestate who owed C. D. 100 l. But after appearing no other than a Pretender to the said Administration the Law for the reason aforesaid excludes him from being a Reall Legatary to the said 100 l. 27. A Testator saith in his Will That his Executor shall give his Lands scituate in S. to A. B. and to C. D. more than this 10 l. The Question is of what import the words more than this are in the Legacy of 10 l. to C. D It is held That by reason of the words C. D. shall have the whole 10 l. and one Moiety of the said Lands Devised in manner aforesaid 28. A Legacy of 100 l. is given to A. B. on this Condition that he buy such a House of C. D. which is worth 50 l. and give it to J. G. The Legatary A. B. offers 50 l. for the House to C. D. He will not sell it him under 100 l. Q. whether A. B. is obliged to give the 100 l. for the House that so he may deliver it to J. G. according to the Testators will and meaning It is resolved in the Negative But he shall give the Testators value and estimate thereof viz. 50 l. to J. G. 29. Suppose the Testator give thee 100 l. That therewith thou mayest do something for a third person specifying the person and the thing which the Testator would have done Thou demandest the 100 l. of the Executor he refuseth to pay it thee unless thou give security to
a Bond or Obligation is bequeathed in the latter a Discharge or Release 4. And when a Creditor bequeaths a Debt it is not alway material to insert any certain Sum of Money in the Legacy of that Debt for suppose the Testator sayes I bequeath the 10 l. which A. B. owes me be it to A. B. himself or any other in that case a right rather than any certain Sum is understood to be given because if A. B. owed the Testator nothing then nothing is bequeathed and so the Legacy Fruitless 5. But now on the other hand when a Debtor bequeaths what he owes and the Legacy be given to the Creditor himself In that case it is very material to see whether any certain Sum be express'd in the Legacy or not for if there be as when a Debtor-Testator saith I bequeath to A. B. 10 l. which I owe him In that case not so much a bare right only as a certain Sum of Money seems to be bequeathed him for which reason a Legacy of 10 l. will be good to A. B. albeit the Testator owed him nothing 6. But if there were no certain Sum express'd by the Debtor-Testator as if he had only said I bequeath to A. B. what I owe him It is a Fruitless Legacy if he owed him nothing In like manner if a Testator saith I give my Wife what I had with her in Marriage or her Marriage Portion if he had nothing with her in Marriage the Legacy signifies nothing yet if he had said I give my Wife 100 l. which I had with her in Marriage or for her Marriage-Portion though in truth he had nothing with her the Legacy shall be good and is worth her 100 l. Or having had 100 l. with her shall in his Will say I give my Wife 200 l. which I had with her in Marriage the Legacy is good for 200 l. yea though he should therein refer himself to the Articles of Marriage and add as is contained in certain Covenants of Marriage made between us The Reason is because the Law more considers the thing it self when in terminis express'd in a Legacy than any false demonstration thereof Unless it can be sufficiently proved That the Testator meant otherwise than he spake or that he err'd in supposing that to be true which was not so In which case the Legacy avails nothing albeit a certain Sum were in terminis express'd by him 7. For which Reason the Legacy is not good in such case unless he certainly knew he owed nothing to the Legatary otherwise it is if he supposed he did when indeed he did not And the Reason why a Legacy given by a Creditor is nothing worth though the Sum be express'd if nothing be due to him And quite otherwise in the like case if the Legacy be given by a Debtor the Reason I say of this Difference is because the Creditor is understood to bequeath only a Debt Bond or Obligation but the Debtor doth bequeath a certain Sum by Name or the very thing it self expresly 8. A Testator in his last Will and Testament inter alia saith whereas I have in my custody a certain Instrument of Writing wherein A. B. stands bound in the Sum of 400 l. for the payment of 200 l. to C. D. I will that my Executor shall restore the said Bond to C. D. or pay him 200 l. After the Testators death the Bond cannot be found among any of his Writings nor any knowledge thereof possibly had In this case Judgment was given against the Executor and he condemn'd in 200 l. to C. D. as a good Legacy to him by the said Testator 9. When a Debt is bequeathed whereon nothing is due the Bequest is Fruitless if the Testator believed it to be a good Debt albeit the Sum or quantity thereof were express'd in the same But if the Testator when he bequeathed such Debt knew there was nothing due upon it the Legacy is good And although he who bequeaths a Bond bequeaths the Debt contain'd therein yet he that bequeaths to his Debtor the Silver Cup or the like which he had of his in pawn for 5 l. doth not thereby bequeath him that Debt of 5 l. The Reason is because there is nothing but the Pawn or Pledge released the duty and personal obligation still remains Note that he who bequeaths his Debts is understood to bequeath his Credits that is the Moneys or what else is owing to him for Debts as was before observed are taken both Actively and Passively but in this sense of a Creditors bequeathing them they are only taken Actively 10. If a Testator bequeath to A. B. whatever C. D. owe him and C. D. at the same time wrongfully detain'd the possession of certain Lands from the Testator these Lands shall pass by the Devise to A. B. as well as the Money which C. D. owed the Testator as hath been adjudged not at the Common but Civil Law for it is more than presumed that at the Common Law such words though in a Will not Nuncupative but Written are no capable of being by any legal Intellect strain'd to a Latitude of that extent or whether he that bequeaths his Books of Accompt or his Shop Books shall thereby be understood to bequeath the Debts contained therein as also the Moneys in the said Books Calendaried by way of Accompt and design'd for Trade as is likewise evident by the Civil Law 11. Although the Bequest of a Debt is a good Legacy so long as it is a Debt and the Bequest unrevoked yet the Payment of a Debt to the Testator in his life-time extinguisheth the Legacy thereof formerly Bequeathed by him Not so in case it were paid to his Executor soon after his Decease And this holds true albeit the Debt consisted in some certain specifical thing if it perish'd in the Testators time otherwise the Legacy is good Likewise the Testators giving an Acquittance to the Debtor doth extinguish a bequeathed Debt The Reason hereof is because by all these wayes the very substance it self of the Debt which was the thing bequeathed is destroyed yet here Note withall That if a Testator doth demand a Debt which he had bequeathed not with any mind of abating the Bequest but fearing the failure or future Insolvency of the Debtor and shall after keep this Money by it self with some signification therewith what Money it was in such case the Legacy is good notwithstanding such payment precedent which holds yet more strong in case the Testator demands it not but the Debtor himself comes and offers it and with such earnestness as the Creditor-Testator cannot well refuse it And if afterwards the Testator makes a Purchase with part or all of this money which he so demanded not with any mind of abating the Legacy as aforesaid the Bequest remains still good to the Legatary So that if I bequeath
be certain though the Legatary dies before it comes the Legacy shall accrew to his Executors for in that Case the Legacy was due at the Testators death though not payable till that day certain be come But if the day or time be altogether uncertain the Legacy is then as if it were Conditional And the breach or non-accomplishment of a Condition in it self Lawfull and Possible doth either suspend or extinguish the Legacy And as to that frequent Condition relating to Marriage so commonly annexed to the Execution of a Legacy it is not Impertinent here to insert That albeit a Condition absolutely against Marriage is unlawfull yet not so if it be only against Marriage with such or such a Person or with such kind of Persons and therefore the Condition is good if the Testator gives his Daughter 100 l. under this Proviso That she Marry with a Merchant or a Merchants Son otherwise the Legacy to be void In which Case if she Marry first with a Merchant and after his decease with another who is not a Merchant nor a Merchants Son she shall loose her Legacy 26. Lastly The Legacy is but equivalent to a Cypher by the voluntary waiver and refusal of the Legatary declaring his dissent thereunto As also by the Actual and total destruction of the Thing it self Bequeathed for if neither the Quantity nor the Quality thereof can appear the Legacy is void Hence it is That the Bequest of a Debt is void if Payment thereof be made to the Testator in his life time otherwise if after his death it be paid by the procurement of his Executor But if the Testator himself doth exact the Debt the Legacy thereof is extinguish'd Otherwise if paid to the Executor by whose default if any other thing Bequeathed doth perish it shall be no loss to the Legatary nor any loss to him in Case the Legacy be something in general as a Horse or an Oxe not saying which or in Case the Legacy consist in Quantity as so many Bushels of Corn not saying of what Grain or in what Garner or Granary In which and other like Cases the Legacy is not void albeit the Thing so Bequeathed shall uttterly perish Upon Evidence in Trespass the Case was A. made his Will in writing and thereby Devised his Lands to E. H. and her Heirs and afterwards lying sick because the said E. H. did not come to visit him he Affirmed That E. H. should not have any part of his Lands or Goods It was the Opinion of the Court That it was no Revocation of the Will being but by way of Discourse and not mentioning his Will But the Revocation ought to be by express words that he did Revoke his Will and that she should not have any of his Lands given her by his Will Lands Devised by Will to one and after a Feofment thereof made by the Devisor to another the said Devise is Revoked by such subsequent Feofment As in the Lord Bourchers Case touching his Will made 23. H. 8. Note By all the Justices upon an Evidence to the Jury in an Ejectione Firme That if a Man hath a Lease and disposeth of it by his Will and afterwards surrenders it up and takes a new Lease and after dyeth That the Devisee shall not have this last Lease because this was a plain Countermand of his Will A Feme Sole was Seized of Lands in Socage and by her last Will Devised them to I. S in Fee and afterwards she took the Devisee to Husband and during the Coverture she Countermanded her Will saying That her Husband should not have the Land nor any other Advantage by her Will. It was Adjudged upon great deliberation that it was a Countermand of the Will the words being spoken after Marriage for the making of a Will is but the Inception thereof and takes not Effect till the Devisors death One Devised Lands to his Sister in Fee and after made a Lease to her for Six Years of the Lands to begin after his Decease and delivered it to a Stranger to the use of his Sister which Stranger did not deliver it to her in the Testators life time and she Refused and Claimed the Inheritance In this Case it was Resolved because the Devise and the Lease made to one and the same Person beginning at the same time cannot stand together in one and the same Person That it was a Countermand of the Devise But it was there Agreed by all the Justices That if the Lease had been made to any other than the Devisee they might stand together and the Lease should not have been a Revocation of the Will as to the Inheritance but only during the Term. In an Ejectione Firme upon Evidence to a Jury It was Resolved by the whole Court That if one maketh his Will in Writing of Lands and afterwards upon Communication saith That he hath made his Will but that shall not stand Or I will Alter my Will c. That these words are not any Revocation of the Will for they are words but in futuro But if he saith I do Revoke it and bear witness thereof hereby he absolutely declares to Revoke it in praesenti and it is then a Revocation And in this Case it was Agreed by the Justices That as one ought to be of good and sane Memorie at the disposing so he ought to be of as good and sane Memorie at the Revoking of it And as he ought to make a Will by his own directions and not by Questions So he ought to Revoke it of himself and not by Questions If a Man Devise 20 l. to the Poorest of his Kindred it is void by Reason of the uncertainty whom the Court shall judge the Poorest A Legacy of 20 l. given by a Testator to his Daughter to whom his Executor gave Bond in 40 l. for payment thereof according to the Will The Daughter takes Husband who sued the Executor in the Ecclesiastical Court for the Legacy The Ex-Executor pleaded payment according to the Bond and because the Ecclesiastical Judge would not allow the Plea the Executor brought a prohibition shewing by way of surmize the matter aforesaid Tanfield Serjeant moved for a Consultation because the Suit was for a Legacy which is of Ecclesiastical Cognizance And albeit the Executor pleaded Payment which is not there allowed yet he ought not to have a prohibition because Payment is a good Plea in that Court and if the Judge there will not allow it the other may appeal to the Superiour Judge and if this should be suffered in the Case of a Legacy then the Ecclesiastical Court should trie nothing But according to Gandy Fenner and Yelverton Justices the Surmize is good for the Executor by entring into Bond to the Daughter for Payment of the Legacy had Extinguish'd the Legacy and had made the 20 l. Devised a Debt Suable meerly at the Common Law and not
there A Stranger Disseises the Devisor if he die before Re-entry the Devise is void If there be divers Devises of one thing in the same Will the last Devise shall take effect Co. Lit. 112. b. If a Man Seised in Fee Devise the same to I. S. in Fee and afterwards makes a Lease thereof to I. D. for Years this is no Revocation of the Fee but only during the Years Also if afterwards he devise that Lease to another for Life yet that is not any Revocation of the Fee but only during the Estate for Life If a Man possessed of a Term for 40. Years Devise the same to his Wife and after Lease the Land to another for 20. Years and die that Lease is not a Revocation of the whole Estate but only during the 20. Years and the Wife shall have the Residue by the Devise It appears therefore that a Legacy may indirectly and by Implication be Revoked as well as directly and expresly also in part as well as in whole and the Will may stand where Legacies in that Will do not In a Replevin upon Evidence given the Case was this I. W. was Seised of the Lands in Question and of divers other Lands and by his last Will Devised all his Lands and Tenements to A. W. of London in Fee After which he made a Feofment in Fee of the same Lands which he had Devised to the said A. and when he Sealed the Feofment he demanded and said will not this hurt my Will To which it was Answered That it would not And he said If this will not hurt my Will I will Seal it and then he Sealed it and a Letter of Atturney to make Livery The Atturney made Livery in some of the Lands but not in the Lands in Question afterwards the Testator dyed It was said That the Feofment was a Revocation for if the Testator had said That this shall not be his Will then it had been a plain Revocation and then the making of the Feofment is as much as to say That the Will shall not stand But it was Answered and Resolved by the whole Court That it Appeared That the mind of the Testator was That his Will should stand and when he made the Feofment this was a Revocation in Law and here is no Revocation in Deed For he said If this will not hurt my Will I will Seal it And although that the Atturney made Livery in part so as the Feofment was perfect in part yet for the Lands in Question whereof no Livery was made the Will shall stand for a Will may be effectual for part and for part it may be Revoked and the Court told the Jury That this was their Opinion and the Jury found accordingly The Case in Chancery was this C. E. the Testator 15. Jac. made his Will in Writing and thereby Devised Legacies to Charitable Uses and to R. and W. his Brothers viz. to one 100 l. and to the other 1000 l. and other Legacies to his Kindred and made his Wife his Executrix and Appointed his two Brothers to be joyned with her as Executors in Trust for his Wife afterwards 22. Jac. he sent for several Persons to come to him when they came they demanded of him What Friend he thought best to be his Executor and to see his Will performed and whether he Trusted any Person more than his Wife He Answered That his Wife was the fittest Person and therefore should be his Sole Executrix Being then moved to give other Legacies to his Father Brethren and Kindred He Answered He would not leave them any thing But Bequeathed to I. S. his God-son 30 s. And being Requested by his Wife to give him a greater Legacy He Answered Thou knowest not what thou doest do not wrong thy self 30 s. is Money in a Poor Bodies Purse And the Testator spake these words Animo Testandi ultimam voluntatem declarandi And all this was set down in a Codicil And the first Will and the Codicil was proved in Communi forma Whether this Codicil was a Revocation of the Legacy given to the Two Brothers was the Question It was Resolved both by the Civilians and by the Judges of the Common Law That it was not a Revocation of the Legacies Their Reasons were Because there was an Absolute Formal Will made in his Health and there being no Speech made by him of his Formal Will nor of the Legacies thereby Devised The Answer to a Doubtful Question shall not take the Legacies before Devised And his Answering I will not give them any thing Upon such Doubtfull Speeches to Nullifie a Will advisedly made shall not be permitted without clear and perspicuous Revocation or words that do amount to so much And thereupon upon this Opinion of the Civilians and Judges the Lord Keeper Decreed the Legacies to the Brothers the Codicil having made no Revocation of them CHAP. XXVI Certain Positions or Assertions of Law for the better understanding of this Subject of Legacies and Devises with certain mixt Cases touching the same 1. IF the words of the Legacy be Doubtful or Ambiguous the Motive inducing the Testator or the Cause of the Legacy is specially to be inspected 2. In Cases Doubtful whether the Legacy be given Absolutely or Conditionally it shall be presumed as Pure Simple and Absolute rather than Conditional 3. In a Legacy Doubtful as to its value for want of some discriminating description thereof by the Testator that which is of the least value belongs to the Legatary 4. Likewise in all Dubious Legacies as to the Quantity thereof the least is generally to be understood 5. A Doubtfull Legacy relating to Goods shall be understood of such only as the Testator had at the making of the Testament for the clearing whereof the Law casts the onus probandi on the Legatary 6. Where the Doubt arises from the Testators words the Ambiguity shall be interpreted in favour of the Legatary 7. In the Interpretation of Legacies the common usage of Speech is more to be considered than the exact propriety of the words 8. Also the Testators sense and meaning is more to be considered than his words 9. The Testators words are to be understood rather as he thought then as he spake or writ that is the effect of the Testament is guided governed and over-ruled more by the Testators Opinion than as things are in themselves 10. When the Testators words of Bequeathing seem to interfere one with another the latter words shall for the most part prevail Yet not always so there are some Cases wherein Contrarium verum est 11. When the Testators mind and meaning is not as intelligible as it should be hold his words before the Glass of the Law to make it as visible as it may be the Law is the best and indeed the only interpreter in all such Cases 12. An imperfect Speech in Bequeathing a Legacy may
Scituation of Lands Devised by him doth not prejudice the Devise provided he be not mistaken in the Land it self 48. The Testators false Demonstration of the Thing Bequeathed doth not hurt the Legacy so as his Intention be Evident 49. If a Testator Bequeath part of his Goods to A. and saith not what part the Legatary shall have a Moity of the whole 50. If the Testator saith I give thee a part of my House or the like it is as if he had said I give thee one half of my House 51. There falls no more under the Notion of Goods than what the Testator hath clear of his Debts 52. If I give 10 l. to A. and B. they shall have 10 l. between them not 10 l. each 53. If a Man Bequeath all his Horses his Mares are comprized therein 54. By a Bequest of Lambs are understood such as are under a year old 55. By a Bequest of Cattle do pass all Four Footed Tame Beasts that feed in Herds Droves or Flocks or otherwise 56. Although Mares pass as aforesaid by a Bequest of Horses yet not e contra nor by a Bequest of Geldings 57. Nor by a Bequest of Sheep do Rams or Lambs pass yet in that Case the Custom of the Place is to be observed for in some places they are reckoned as Sheep as soon as they are shorn notwithstanding both Rams and Lambs shall pass by a Bequest of a Flock of Sheep 58. By a Bequest of Wooll is understood not only that which is seperate from the Skin but also such as is yet on the Skins of dead Sheep wash'd or not wash'd so as it be not yet dyed nor designed for some special or particular use 59. By a Bequest only of Wooll do pass the Skins also of dead Sheep whereon the Wooll is 60. By a Bequest of Birds do pass all Poultry Geese Pheasants and all Tame or Tamed Fowl 61. By a Bequest of Wood or Lignum is only understood Fuel fit for the Fire not Silva or Trees standing or cut nor Timber fit for Building which pass by the word Materials 62. By a Bequest of Books are only understood Printed Volumes not clean Paper-Books 63. By a Bequest of Silver will pass Money and Plate but not the Chest wherein the Silver is 64. By a Bequest of a Bond Obligation or Specialty doth pass the Debt therein contained vice versa 65. When a Testator Bequeaths a thing in certain but having more of the same kind which he meant is uncertain in such Case the Executor and not the Legatary hath the Election as when the Testator having but two Horses in all gives one of them not saying which to A. B. the Executor and not he shall have the choice 66. Likewise when the Testator Bequeaths any thing Real and Immovable in Certain as his Field called Blackdown when he hath two Fields of that Name in this Case also the Election belongs to the Executor to give unto the Devisee which of them he please 67. But when the Legacy is of Generals or Bequeathed in General as a Horse an Oxe or the like in such Case the Election is the Legataries to chuse only in a way of Mediocrity For 68. When even by the Testators own words the Law gives the Election of the thing Bequeathed to the Legatary it is not intended that he shall chuse that which is the very best for himself and the very worst for the Executor but shall moderate and regulate his choice between them both 69. But when the Election is Doubtful as whether it doth belong to the Legatary or to the Executor In that Case the Law in favour of Wills gives it to the Legatary 70. A Legacy left by a Testator to his Parish Church who after the making of his Will doth change his Habitation is due not to the Parish where he dyed but where he lived when the Testament was made which yet is contradicted as will speedily appear 71. The words Si Donec Quamdiu and the like used in the Form of a Bequest though they seem to be of no great disconsonancy in their import yet do exceedingly alter the Case according to the diversity of their genuine acceptations for a Testators Relict having a Legacy given her of 10 l. per annum if she shall remain a Widdow is obliged to give Caution for Repayment in Case she Re-marry of what in the interim she shall receive by vertue of that Legacy otherwise if the words were untill she shall be Marryed or so long as she shall remain unmarried In both which Cases she shall only loose it de futuro but not be obliged to repay what she received de preterito 73. It is possible that a Legacy may be good even where the Form of a last Will or Testament is not observed for a Souldier being abroad in Military Service wrote home to his Sister that he shouid speedily send her a Letter which he desired and charged her not to open untill he were dead Accordingly soon after he sends her a Letter which she preserves without opening The Souldier is slain in the Wars After she opens the Letter wherein was found written to this effect That he would give her 100 l. It is a good Legacy to the Sister This also holds true in private persons nor is it material whether he be Absent or Present that thus writes provided it be animo Testandi and without any Revocation subsequent 74. There are a few Cases wherein a Legacy is not Revocable Four especially 1 When the Testator Swears never to Revoke it 2 When it tends to Restitution for Goods ill gotten or wrongfully taken and withheld 3 When the Testator gives it for the disburdening of his Conscience 4 When the Testator confesseth in the presence of the Legatary accepting it that he owes him the Sum which he hath Bequeathed him There are also that add a Fifth viz. When the Testator himself in his life time delivers the thing Bequeathed to the Legatary But this the Law understands more properly as Donatio inter vivos than Legatum yet if such Legacy be mentioned in the Testament as it must be if the Legatary hath it under that Notion and such Testament afterwards prove Null that Legacy will be so also the Reason is because such delivery thereof by the Testator alters not the nature of a Legacy and will be understood to be with an Implicite Referendo to the Testament it self 75. If the Testator in his Will doth Appoint That whatever he got by Extortion or any unlawfull ways shall be restored without expressing what or to whom it signifies nothing by reason of uncertainty and which indeed is more a Debt than a Legacy 76. A Legacy left to one if he will the Testator in the Bequest saying expresly I give A. B.
its Integrals or defective as to its more Noble and more Principal Parts and Members as having but one Eye or but one Hand albeit the Creature hath life the Legacy hath none For although an Amplication of the natural Form in this Case doth no prejudice yet a Mutation thereof will understand not this as if it did extend to Hermophrodites For if they be not in a double Capacity as to Legacies as well as other things yet they are not excluded a single Capacity but in that Case it is provided That that Sex which most prevails with them in Nature shall likewise prevail in Law as to the Legacy Bequeathed 107. To conclude with the Pope because much of the Law that treats of this Subject if I would have travell'd that way borders on his Dominions it is Asserted or Legended which you please by a very learned Author That Nemo praeter Papam potest alterare voluntates Testatorum It is nothing strange that he who assumes a Power to dispose of Souls should alter the best faculty thereof for the Wills Society is the Creatures Felicity 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS INDEX GENERALIS OR An Alphabetical Table Comprizing all the Material Points of Chiefest Remarque in this Testamentary Abridgment with Reference to each Page and Paragraph A. ACceptance of Executorship in what Cases Compellable by Law p. 91. § 2. Accessorie Advantages to a Legatary between the time of making the Testament and the Testators death p. 291 292. § 19. Accompt Executors Obliged to Accompt with the Ordinaries power therein p. 150. § 1. Within what time they are â—o Accompt Ibid. § 2. Though it be Judicially made yet it shall not Prejudice Absent Creditors or Legataries not being duly Summoned Ibid. § 3. Whether Accompt lies against Executors for Money paid to their Testators by vertue of the Privy Seal p. 113 114. § ult It lyeth against the Executor of an Accomptant for Money received by his Testator although paid by Order frm the Lord Treasurer Ibid. It lyeth not against the Executor of an Accomptant except for the King p. 128 129. § 2. Actions Maintainable by Executors or Administrators p. 100 c. Personall Actions in the Testator are none in the Executor Ibid. § 2. p. 129. § 3. Actions Maintainable against Executors or Administrators p. 105. c. Personall Actions lie not against Executors as such p. 129. § 3. Whether Actions and Right of Actions fall under the Notion of Goods Devised or under the Notion of Moveables and Immoveables p. 306 307. § 1 2. Administration how it shall be granted p. 153. § 5. Whether it may be Granted by Word only Ibid. § 5. p. 163. § ult Whether it may be Granted Conditionally and with an Ita tamen p. 162. In what case it may be Granted notwithstanding an Executorship Ibid. It may be Granted of the Goods of a Woman Covert Intestate Ibid. Two Letters thereof may be Granted and both Good p. 69 70. § 5. What Acts amount to an Administration p. 162. § ult To take in any of the Testators or Intestates Obligations and give others in stead thereof is an Administration and alters the Property Ibid. p. 159. § ult To whom of right it belongs p. 169 c. Granted to an Executor of his own wrong will not Justifie him p. 162. § ult To whom it belongs Durante Minoritate p. 67 68. § 4. When it ceases ibid. Committed Durante Minoriaetate p. 154. § 6. Granted by the Metropolitan where there is not Bona Notabilia is voidable not void otherwise if Granted by a Bishop when it appertains to the Metropolitan p. 167. § ult In what Cases not voidable only but void also p. 159 160. § ult Granted a Caveat depending void p. 171. § 5. Adminstrations Fraudulent and Revokable p. 164 c. Whether to say granted by a Bishop a good Plea without shewing that he was Loci illius Ordinarius And whether so of a Dean or Arch-Deacon p. 155 159 160 161 c. § ult To say Granted by A. W. LL Dr. no good Plea because not shewed to be Bishop or Ordinary p. 161. Administration Durante Minori aetate ceaseth at the Age of 17 Years p. 67. § 2. Administrator What he is in Law p. 151. § 1. His Origination Ibid. § 2. What in a Notion distinct from Executors p. 151. After an Executors death how the Law in that case provides p. 152. § 3. Administrator of an Intestate Executor may not meddle with the first Testators Goods p. 69. § 4. He is an Assigne in Law as well as an Executor p. 161. § ult In what case Acts done by a former Administrator are good notwithstanding Letters of Administration after Granted to another p. 165 166. § 4. In Plea he must shew not only who Granted his Letters of Administration but also that he had Legal power so to do p. 158 159. § ult What sales or disposals of Goods an Administrator may make Durante Minoritate of the Executor p. 156. Administrator pendente Lite of a Citation to Repeal sells Goods good for he hath Lawfull power to Dispose c. Otherwise in an Appeal p. 166. § 5. In what Case an Administrator only in pretence shall be no Legatary in reality p. 318 319. § 26. Advowson in Fee how Devisable p. 288. § 5. Advowson in Gross not Devisable p. 225. § 2. Whether an Advowson may be Assetts p. 122. § 8. Age At what Age Minors may be Devisors p. 205. § 1. Age Superannuated into Dotage Intestable p. 13. § 4. Alien not Denison whether he may be an Administrator p. 170. § 4. Alien Administrator though Enemy may Sue p. 103. § ult Alien not Denizon intestable as to Lands p. 226. § 3. Alienations Prohibited to Devisees with the difference between necessary and voluntary Alienations p. 298. § 48. A Tripartite Case in Point of Alienations prohibited by the Testator p. 248 249. § 49. All How that word is to be understood p. 311. § 14. Anabaptists by the Civil and Canon Law Incapable of being Legataries p. 207. § 2. Animus Testandi Necessary in every Testator in making a Will or Devise p. 2. § 2. p. 202. § 2. Annuity when payable if no fix'd time be set by the Testator p. 306. § 20. p. 439. § 3. p. 444. § 78. Apostates Intestable p. 21. § 4. Incapable of a Legacy p. 206. § 2. Appellation of things ought not to be besides the Testators Intention p. 294. § 29. Appurtenances by that word shall pass Lands commonly used with a Messuage Devised p. 272. § 6. They are not where the one is Freehold the other Coppyhold p. 235. § ult Arbitrament made in writing against a Testator doth not charge his Executor p. 108. § 6. p. 110. § ult Debt thereupon against an Administrator not good p. 109. § ult Assent of an Executor necessary to the having of a Legacy p. 162. § ult Assent to
Joynt-Tenants in what cases p. 233 § ult p. 242 § 4 p 245. A nice distinction between-such and Tenants in Common p 242 § 4. To whom Goods in Joynt-Tenancy belong at the death of either Joynt-Tenant p 86. § 2. Such Goods are not Devisable p 223 § 6. Issue A Devise made in general to the Issue void by reason of uncertainty p 233 in prin The difference between Issue Born and not Born at the time of making the Devise in point of Entail or Joynt-Tenancy p 249 § 5. Jus Representationis what it signifies p 172 § 1. In the Line Transversall or Collaterall it holds only in the Brothers Children not in their Grand-children p 177 § 1. K. Kindred and Consanguinity how they differ p 170 § 3. Collaterall Kindred how far and to what degree they may succeed each other p 179 § 4. Kindred or of Kin to the Testator at the time of his death sufficient to take by a Legacy to his Kindred though they were not such when the Will was made p. 444 § 80. L. Lands Devisable by Will p 224 c. What and how much thereof Ibid § 1. What may pass by a Devise under that Notion Ibid § 2. By and to what persons Land is Devisable or not p 225 to 228 § 3 4. By what kind of Testament p 228 § 5. Lands may pass by Will where no Executor is named p 5 § 4. Lands may by the Common Law be Devised to whom Goods cannot by the Civil Law be Bequeathed p 226 § 4. A Devise of another mans Land void p. 228 § 5. Land twice Devised in the same Will to several persons how both may be good p 230 231 § 4. Whether Lands new purchased pass by a Will formerly made p 231 § 6 ult Leases for years pass not by a Devise of Lands if the Devisor had any Lands in Fee Ibid § 6. Customary Lands may pass by a Will without Writing other Lands not p 4 5 § 3. Lands Devised on a present Payment or on Payment out of the Profits thereof what different Estates they create p 254 § 6. Lands Devised with Limitations and upon Condition p. 266 c. Land Devised by a Coppyholder to his Wife p 274 275 § 7. Land Devised for life by the Husband to the Wife not for her Jointure no Barre to her Jointure p. 282 § 14. How the Devise of another mans Land may become a good Devise p. 228. § 5. Devises of Land void or not p 229 c. p. 441 § 47. Several Cases in Law touching Lands Devised p 288 c. Lambs Bequeathed understand such as are under a Year old p 441 § 54. Lease simply for Lives belongs neither to the Heir nor to the Executor p. 86 § 4. Lease made in trust by a Woman for her use who after Marries enures not to her Husband but to her Executor when she dies p 99 § ult Leases of Terms of Years Devised p. 256 c. Though Devised for 99 Years yet determinable upon one Life Ibid. § 2. Chattell-Leases pass not by a Devise of all the Lands p 257 § 4 By a Lease for Years Devised for Life doth pass the whole Term yet is it not an Estate for life Ibid. § 5. By what words a Lease and the Interest of the Lessee may be Devised p 257 258 § 6 The Residue of a Term is as Devisable as the Term it self p 258 § 7. A Devise of a Lease for Years may be in Law which doth not so appear in Fact p Ibid § 9. The whole Term though not named shall pass by a Devise where no other can pass by Implication p 259. § 10. Legacy what p 200. § 1. What Words or Expressions sufficient for a Legacy p 209 c. Whether the time of making the Testament or of the Testators death be the more considerable in Legacies p 202 203. § 3 p 227 § 4. In what Court Legacies are properly Recoverable p 204 205 § 4. The difference between Bequeathing a Legacy to one whenhe shall be of full Age and to one to be Payed when he shall be of full Age. p 281. § 12. Legacies and Devises in respect of Marriage p 279 c. What of her Legacy shall the Wife have if she Marry after her Election to the contrary p 280. § 8. Legacies between Baron and Feme p 279 c. Legacies grounded upon wrong Suppositions in the Testator inherent in the very Body and Substance of the Legacy it self do not oblige his Executors p 305. § 17. Several Sums Bequeathed to the same Party in two Instruments both otherwise containing the same Will the lesser only is due p 316. § 19. Legacy forfeited upon non-performance of some duty enjoyned p 446. § 92. Legacies referring to Debts and Cases in the Law touching the same p 321 c. They fall under four Heads p. Ibid. § 2. Legacies by Creditors to Debtors e Contra. p. 322. § 4 5. to § 10 A Legacy Bequeathed in fraudem Legis is void p 320. § ult A Legacy of a Debt is extinguish'd by payment of that Debt to the Testator p 324. § 11. Whether the Testators not having what he Bequeaths voids the Legacy p 330. § 8. The same Thing twice Bequeathed or Bequeathed unto two distinctly which of them shall have it p. 331. § 9. A Legacy given indistinctly to A. B. and there be two of the name who shall be preferred to the Legacy Ibid. § 10. If a Single Legacy be given only to one though it be Devisable yet it is not Dividable p. 332. § 15. ult Legataries who are incapable of being p. 206 207. § 2 A Legatary refusing his Office or Duty imposed on him by the Will though but in part looses his Legacy in the whole p. 316. § 16. In what case the Legatary shall have his Legacy presently though it be given him when he shall die p. 280. § 6. What the Legatary that Marries shall have when more is Bequeathed him in case he Marries not than if be doth Marry p. Ibid. § 7. The Legatary must expect the Executors delivery of his Legacy p. 440. § 39. How one may be a Legatary in Construction of Law only p. Ibid. § 42. Whether a Legatary-Executor may after Debts paid first satisfie himself p. 317. § 20. A Legatary if capable at the Testators death sufficient for the Legacy though he were not so when the Will was made p. 446. § 88. Letter from one friend to another sufficient to contain a Will or Devise p. 212. § ult p. 443. § 73. Letters of Administration in what case they may be granted p. 154 § 7. To whom p. 151. § 2. They may be granted in England by a Bishop of Ireland p. 155. § ult Whether they ought to be shewn in Court by Administrators in Actions brought by them p. 103 104. § ult Whether it be necessary to set forth in a Declaration by whom they were
part not expressed is a Moiety implyed p. 293. § 23. p. 310. § 11. p. 441. § 49 50. Paying In what Sense that word shall be construed only as a Limitation not as a Condition p. 267 268. § 5. Payment not full in what case Equivalent to none at all p. 289. § 11. PiousVses Testaments to that end their Priviledges p. 8. § 4. Poor disagreement among the DD. touching Legacies to the Poor in such generall words p. 291. § 18. Pope whether he may alter the Wills of Testators p. 149. § 107. Portion of Goods not expressing what proportion Bequeathed signifies 〈◊〉 Mâ—ity p. 447. § 100. Portions or Filiall Portions the Law in that case p. 167 c. Possibilities in Expectation are Devisable as well as Possessions in Actual Demes 〈…〉 es p 311 § ult Presentations void not Devisable p 288 § 5. To whom belongs the Presentation in case of Intestation p 82 § 6. Prisoners In what Sense said to be Intestable or not p 15 § 3. Priviledged Testaments what the severall kinds thereof p. 7 § 1. Probate of Testaments the Law thereof when where how by and before whom with the Fees thereof p. 35 c. In what case the Executor may be compelled to Prove the Will notwithstanding his former refusall and thereupon Letters of Administration granted to another p. 165 § 2. What Proof Requisite for the Probate of a Will p. 40. c. Prohibition in what Cases it doth not lie p 113 § 7. In what Cases touching Lands Devised to be Sold a Prohibition may lie or not p 275 § 9. It doth not lie in case of the Husbands Release for the Wives Legacy p. 282 § ult R. Recovery by Fraud against an Executor no Plea in Barre to a just Debt p 108 109 § 7. Refusalls to Prove the Will p 39 40 § 6. How to Proceed in case of Refusall of Executorship p. 91 92 § 1. It is no absolute Barre to a Subsequent Administration p Ibid. § 3. It may be done by a Letter Extrajudicially as well as by a Judiciall Act. p 93 § ult How Refusers to Administer may yet afterwards be admitted or excluded p. 163 § ult Refusall in one to take by a Devise shall not prejudice him in Reversion or Remainder p 263. § 9 13. Release or Discharge in what Sense it may be said to be Bequeathed p 322 § 3 p 439 § 32. To Release is a good word to Devise Lands by p 235 in fin A Release of Actions by an Administrator whose Letters of Administration are after Revoked is void p 216 § ult Action for Executors upon a a Release p. 103. § ult Remainders and Reversions Devised p 261 c. What of that kind may be Devised p Ibid § 1. Remainders and Cross-Remainders by Devise of Estate Tail p 252 § 11. With Implyed Remainders Ibid § 12. Remainders Entail'd by Devise and by Deed how they differ p 262 § 7. Remainders Devised to a Church accrews to the Parson thereof Ibid. § 8 He in Remainder or Reversion shall not be prejudiced by the Refusall of him that should take by a Devise p 263 § 9 13. How the Issue of the Daughters without naming them shall have the Devised Remainder in preference to the Issue of the Sons Ibid. § 10. Several Cases wherein he in Remainder may Devise his Remainder p Ibid. § 13. Reversion of Land for life may be Devised by the Lessor notwithstanding a Feoffment in Fee p 264 § 16. Remainder of a Rent-charge is Devisable to one where the Land out of which it arises is Devised to another Ibid. § 17. A Devise may be good for the Reversion of a Term where it is otherwise for the Rent p 264 § 18. Remainder Devised may be good where yet an Estate Tail precedes Ibid. § 19. He in Remainder may instantly take where the Devisee is incapable Ibid. § 20. Remainder may be Devised by one to his own right Heirs Ibid. § 21. Reversion may be Devised by the name of all a Mans Inheritances or Hereditaments p. 265 § 22. Remainder Devised to the next of Blood Ibid. § 23. In what case Remainder after Remainder makes the former Remainder but an Estate for Life p. Ibid. § 24. Remainders Devised what void p 261. § 2 p 262 § 3 to 6 p 264 § 15. A Hundred Years to come Devised for Life the Remainder over is a void Remainder p. 263 § 11. Remainder in Fee after a Lease Devised by him in Remainder is a void Remainder if the Lessor Re-enter Ibid § 12. Remainder after a Fee Devised is Indeviseable albeit such Devise were but Conditional p 263 § 14. A Term of Years by way of Remainder is Devisable but a Devise by way of Entail with remainders over is void p Ibid § 15. Rents Devised p 270 c. As Devisable as the Land itself Ibid § 1. They are Devisable for another mans life Ibid § 2. Rents issuing out of a Common not Devisable § 3. Several ways of Devising Rents § 4. Reversion of Rents Devised upon a false suggestion a void Devise p 271 § 5. Rent Devised in what case the Land it self doth thereby pass p 138 § ult What Rent not Devisable p 225 § 2. In what case the Rent is due to the Heir not to the Executor p 103 104 § ult Rent due to the Executors of the Husband of the Tenant in Dower Ibid. Rent of Land in Fee received by Executors no Assets because belonging to the Heir p 85 § 3. The Land-lords Rent is payable by the Executor for the Ground whose fruit for the Term may be Devised to another p 298 § 46. Residue of a Term is as Devisable as the Term it self p 258 § 7. Residuary-Regatary hath an Advantage when others Refuse p. 291 § 17. Retainer of a Testators Goods by an Executor to pay himself good p 133 § ult p 149 § ult Reviver of a Will Revoked p. 34 § 1. Revocations Testamentary the severall kinds thereof p 31 § 1. Revocations by Marriage Ibid § 2. Revocation of a Will by a Wife after Marriage whether good or not p. 236 § ult Whether Revocation of Administration may without any Sentence in Court be by the Bishop who granted it p 166 167 § ult Revocations of Legacies and Devises p 331 c. What amounts to a Revocation of a Devise of Land p 228 in fin Severall Cases in Law touching what shall amount to a Revocation or Countermand of a Legacy or Devise p. 443 § ult Four Cases wherein Legacies are irrevocable p 443 § 74. S. Sale of Lands Devised to be made by Executors p 273 c. with or without the Assent of others p 274. § 5. In what case it may or not be by one alone where there are Two or more Executors p 275 276 § 10 12. How it becomes void for want of sufficient Authority p 175 § 11. In what Case it may be made by
l Ibidem m l. cum tali §. 1. ff ibid. l. pater §. Socrus ff ibid. n Gloss DD. in dict l. Mutianae o Ibidem p l. hoc genus ff de Cond Demon. q Mantic. de Conject ult vol. lib. 11. tit 16. n. 23. r l. illa ff de haered instit s l. fidei commiss ff de fidei commiss t l. si pupillus §. qui sub Conditione De Novat a Vigel Method jur Civil part 4. l. 14. c. 3. b l. cum ita l. hoc modo l. sed si §. cum vit ff de Cond demon c l. quoties ff ibid. l. 2. C. de Indict vid. d l. cum tale §. si arbitratu ff ib. Gravet Consil 1. n. 3. Mant. l. 11. tit 18. nu 8. e Gravet Mant. ibid. Perkins de Test Conjug l. 1. c. 24. n. 6. f Mantic. ubi supra g Paul de Cast Cons 300. vol. 1. Felin in c. 10. part de Constit Ext. Col. 2. h Mant. de Conject ult vol. l. â—1 tit 18. nu 8. a l. si quis instituatur §. 1 2. ff de haered instituend b l. 2. §. si sub Conditione ff de bonor possess c l. haeres ff de acquir haeredit d l. si quis instituatur ff de haered instituen e Bart. Bald. Paul de Castr in ff de haered instiâ—uend f Stat. 21 H. 8. c. 5. g Abridg. dez Cas Edit Anno 1599. tit Administ fol. 183. n. 1. h Terms of Law verb. Administ Broo. Abridg. tit Ordinarii nu 13. Abridg. dez Cases fol. 176. nu 12. i Dyer fo 256. Abridg. ibid. k Dyer ubi supra a Supra cap. 7. b St. 27 H. 8. c. 20. Dr. Stu. l. 1. c. 8. Perk. tit devise 102. c Supra cap. 14. §. 5 6. d Infra lib. 22. cap. 6. e Bart. in l. fin ff si quis aliq testari prohibetur f Oldend de Actionib clas 5. fol. 518. g l. Lucius l. Divus ff de Milit Testa h §. posteriori Inst quib mod testa infirm i l. 1. ff de his qui test del k §. alio Inst quib mod testa infirm l l. 1. 2. ff si quis aliq testari prohibetur A man maketh a Testament without naming any Executor This is good for Land but not for goods Dyers Read in Stat. of Wills Sect. 2. §. 3. Trin. 36. Mich. 36 37 Eliz. Downhall vers Catesby Moo Rep. nu 483. The Case of the Coheirs of Sir William Rider in the Court of Wards Moo Rep. nu 1222. a Bald. in l. Sancimus C. de Testa Mant. de Conject ult vol. l. 2. t. 15. b Offic. Exec. §. de Revocat c Ibid. d Crok Rep. Cas Eyres ers Eyres in C. B. e Ibid. f Bald. Paul de Castr Mantic. Alex. Jason Dyn cum multis aliis g 6. Ed. 6. Dyer Goldsb Rep. in Cas Gibson vers Platloss Crok Rep. in cas Hodghinson vers Whood in C. B. b Offic. Exec. ubi supra i Ibid. k M. 25 26 Eliz. l Supra cap. 10. §. 2. m l. quaerelatur ff de militari Testa n Offic. Exec. o l. posteriore Inst quib mod Testa infir p l. cum proponat C. de Codicil q l. ult ibi DD. C. de Edict Divi Adrian r Sichard in dict l. ult Mant. l. 2. t. 15. n. 17. s Mant. lib. 6. tit 3. nu 48. t Idem per l. Sancimus c. de Sacrosanct Eccl. u Gloss DD. in l. cum propenat C. de Codicil Grass Thes Com. Op. §. Codicillus w §. ex eo Inst quib mod Teste infirm l. Sancimus C. de Test x Simo de Praetis de interpretat ult vol. lib. 4. fol. 226. nu 46. y Gloss in l. si mihi tibi ff de Legibus z Ibid. Jason in l. Horatius ff de Liber posthum Mich. 38 39 Eliz. B. R. per Popham Roll. Abridg. tit Devise P. Roll. ibid. R. Pasch 4 Jac. B. R. Sympson vers Kirton Cro. Rep. par 2. Pl. 2. Mich. 16 Jac. B. R. Fitzhugh Cranuel vers Saunders Cro. Rep. par 2. Pl. 3. a Tract de Offic. Exec. §. de â—oâ— Publicat b Ibid. 44 Ed. 3. sol 33. c Heb. 9. 16 17. d Ratio est Stat. 32 H. 8. c. 1. e St. 31 Ed. 3. c. 11. f Offic. Exec. c. 1. §. 1. g Goldsb Rep. in Cas Gibson vers Platloss h Dec. Cognol Hier. Fran. in l. jus nostrum ff de Reg. jur i Tract de Rep. Angl. lib. 3. c. 7. k Broo. Abrid tit Exec. Plow in casu inter Greisb Fox Socin Reg. Fallen Reg. 495. ubi 22 Casus in quib pot quis decedere pro parte Test pro parte Intestatus a Fitzh tit Testam nu 2. Dr. Stu. l. 2. c. 28. b Jo. de Atho in Legatin Libertat de Execut. Testa verb. Ordinario c Linw. in c. Statut. verb. ad quos pertinet Perk. tit Testam fol. 94. Fitzh Abridg. tit Adm. n. 7. Brook cod tit tit 48. d Dr. Stu. ubi supra Perkins ubi supra Tract de Rep. Anglicana l. 3. c. 7. 21 H. 8. c. 5. e Offic. Exec. c. 4. §. 1. f 2 R. 3. Fitz. 4. Coke lib. 9. fol. 43. Co. 9. part Hens 〈…〉 Case Godbolt Mich. 22 Eliz. Dyer 367. Hughs Abridgm verb. Wills and Testaments Vid. Cook 9. Part. 37 38. in Hensloes Case vid. Hugh's Abridgment verb. Probate of c. g Perk. tit Test fol. 93. h 21. H. 8. c. 5. l. 1. ff quemadmodum testa approba ibi Bart. Bald. Ang. in dict l. 〈◊〉 i Glos Bald. in l. 2. ff ibid. in princip k l. 〈◊〉 in prin §. hoc interd ff de Tab. exâ—il l Alex. in l. 2. C. de Test nu 3. verb. Tamen m l. 2. §. utrum ff quemadmod Testam approb n Fulb. Par. par 3. Diolog 3. fol. 32. o 9 Ed. 4. 33. p 31 Ed. 3. c. 11. 13 Ed. 1. c. 19. 21 H. 8. cap. 5. q Bal. in l. 2. c. de Testa nu 2. Sichard ibid. Alex. Paul de Cast alii in eand leg r Paul de Cast Consil 96. vol. 1. Simo de Praetis de Interp. ult vol. l. 2. dub 2. Sol. 3. s Cowell Interpret verb. Probat t Stat. §. postquam de Test l. 3. Provin Const Cant. u Coke Inst Part. 4. verb. Praerog Court cap. 74. Stat. 21 H. 8. c. 5. w Coke Ibid. x Dict. Stat. 21 H. 8. c. 5. 9 Ed. 4. c. 33. Plowd 184. 〈◊〉 y 9 Ed. 4. 47. Dyer in Cas Greisbrook Fox Plow Com. 280. b. Pasch 7 Eliz. z 26 H. 6. fol. 78. a Mich. 27 28 Eliz. b Offic. Exec. cap. 3. §. 2. An Executor before Probate of the Will may