tenure of the present owner or by Assignment from the King or other Lord of whom the tenure was is a Chattell reall not personall though it be an interest in the person of another but it is in respect of a tenure of Land or other hereditament and is for yeares viz. during the minority or till marriage had and so is reall Next a Villen for yeares as by Grant for a terme from him that had the Inheritance is a Chattell reall As for an Apprentice for yeares it is by Custome as I take it that hee goeth or is derived to Executors but for reason after shewed I thinke this Interest be not in the realtie but in the personaltie rather So of a debtor in Execution for debt the interest in him or perhaps more properly in his liberty is not as I conceive for reasons which after I shall expresse a reall but a personall Chattell The like Law of a Prisoner taken in the Warres As for Fishes in a Pond Conies in a Warren Deere in a Parke Pigeons in a Dove-house where the Testator had the Inheritance or but for life in the Pond Warren Parke and Dove-house they are not Chattells at all nor to goe to the Executors but to the Heire with the Inheritance If the Testator were but a Termer they are to goe to the Executor but as accessary Chattells following the state of their principall viz. the Warren Parke Dovehouse Pond c. The reall Chattells not living are either in Houses or Lands most usually and that three wayes First by Lease for yeares Secondly by Wardship of Lands held by Knights-Service Thirdly by extent upon Judgements Statutes or Recognizances Or in things issuing out of Houses or Lands as Rents Commons Estovers or such like But where an Inheritor reserves a Rent upon a Lease for yeares this shall not goe to the Executor but to the Heire with the Reversion other than Arrerages behinde at the death of the Testator Also Commons Corodies for yeares Advowsons Tithes Faires Markets Profits of Leetes and such like which the Testator had for yeares all which may accrue any of these wayes as the first are Chattell and Reall Yea one simple presentation to a Church upon the next avoydance is a Reall and not Personall Chattel before it come to be voyd and what then it is we shall after shew And the title accrued to the Crowne upon attainder of felony where the party held not of the King viz. The Annum diem Vastum that is power not onely to take the profits for a yeare but to waste and demolish Houses and to extirpate and eradicate Trees and Woodes is but a Chattell and therefore though granted to one and his Heires by the King yet shall goe to the Executor and not to the Heire Some doubtfull or lesse deere Cases touching Chattels Reall FIrst where we spake of Wardship it is not to be understood of Wardship by reason of Soccage tenure for that goeth not to the Executor but he shall be next Guardian who now after the death of the first Guardian shall be next of Kinne if the Ward continue under fourteene yeares old else he is out of Wardship Secondly if one have a â—ease for three lives to him and his Assignes this is no Chattell nor shall goe to the Executor nor to the Heire but to him who first enters and claimes it as an Occupante if no assignment be in the life of the Lessee made Contrarily of a Lease for many yeares if three or more or lesse so long live this is a Chattell and shall goe to the Executor So an extent upon a Statute yet it is delivered to the party as a Freehold viz. Vt liberum tenementum but that only makes it to be quasi liberum tenemenâ—â—â— as to the maintaining of an Assise if wrongfully put out Where one is seised in the right of his Wife of Land or other Hereditament and is attainted of treason or felony the profit thereof accrued unto the Crowne is but a Chattell and though the King grant it to one and his Heires yet it shall goe to his Executors And if one having a Lease for many yeares viz. a 100. 500. or more or lesse and doe devise and bequeath the same to A. and the Heires males of his body and for want of such issue to B. and the Heires males of his body and dyeth having issue a Sonne the terme shall not goe to his Sonne but to his Executor or Administrator for it cannot be made a matter of Inheritance so if A. had dyed without issue male the terme should not have gone or remained to B. but to the Executor or Administrator of A. as was lately adjudged in the Exchequor betweene Sir Roberâ— Lewâ—nor and Mistris Hamond So of an advowson or any other hereditament granted or devised to one and his Heires for a 100. yeares or if such a termer grant a Rent out of the Land to A. and his Heires or the Heires or Heires males of his body yet shall the same goe to the Executor and not to any Heire for it being derived out of a Chattell cannot be any Freehold or Inheritance but it selfe a meere Chattell Partus sequitur ventrem Of Chattels Personall PErsonall Chattells or Goods moveable are also in like manner to be divided into quicke or dead The quicke are Cattell of all kindes as Sheepe Horses Kine Bullockes Swine Goates Geese Duckes Poultry c. There may be also in living Creatures reasonable an Interest as in a Chattell personall as in the person of a man taken in execution for debt And this I hold to be in nature not a Reall but a Personall Chattell as before was touched for that debt is the roote of it and the body is but a pledge or gage dischargeable instantly upon payment release or other discharge of the debt Like Law of a Prisoner taken in the Warres for thereof and therein as in a Chattell hath the party a legall interest as appeares by a Writ of Trespasse in the Register for taking away a Prisoner viz. Quare quendam Scotum prisonarium suum cepit c. And note lately viz. In the time of King Henry the 8. the King himselfe upon the winning of Bullen bought divers Prisoners of his Subjects And by a Statute in the beginning of Henry the 6. his time this Interest in a Prisoner is mentioned as valuable and comming from one King unto another therefore doubtlesse shall go from Testator to Executor by death and not be infranchised or freed thereby The interest which one hath in an Apprentice I take to be rather Personall than Reall though for yeares because not springing cut of any Reall roote as Wardship and Villenage doe but out of a meere contract As for a Servant whose Master is dead doubtlesse he is legally discharged and is not Servant either to Heire or Executor but meete and honest it is that one of them continue
Things accrued by Covenant or Assumption IF A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be in him as Executor and consequently as Assets This is proved by the Judgement in the Case betweene Chapman and Dalton in the late Queenes time Yet I confesse that it is not expressed in the resolution of this Case that this Lease should be Assets but that the Executors should have the Terme as Executors which implyeth as much in my understanding and the declaration whereupon the Defendant demurreth sets forth the breach of that Covenant to be in retardatione executioâ—is testament so as the dammages thereupon recovered viz. 300 and 30. pound were Assets and consequentâ—y also should the terme have beene in â—ew and recompence whereof these dammages were given The like Law if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Mault or so many loades of Coales or Wood or any other Wares or Marchandise and this is not performed in the life of B. but after to his Executor it shall be to him as Executor and shall be Assets in his hands as well as the money recovered in dammages for not performing should have bene Of things accrued by remainder or increase IF a Lease be made to one for life the remainder to his Executors for yeares and he dieth this will be Assets in the hands of his Executors though it were never in the Testator as was in the later end of the late Queenes time resolved by three Justices the Lord Anderson onely being of a contrary opinion and there it was said that Cranmers Case wherein the contrary in effect was resolved was of little authority for that there were first two Judges against two till after Mounson changed his opinion upon a conceit that there the estate was by way of use which could make no difference like law where a Lease for yeares is by Will bequeathed to A. for life and after to B. who dieth before A. Although B. never had this terme in him so as that he could grant or dispose it yet shall it rest in his Executor as his goods and be Assets As for a remainder for yeares so in the Testator that hee might grant or dispose it at his pleasure no doubt can be thereof though the same fell not in possession to the Testator in his life time yet no scruple nor doubt can be but that this is Assets to the Executor even whilst it continues a remainder and before it falleth into possession because it is presently valuable and vendible Nor much of other nature to these are the Cases where the Executor Marchandizing with the goods of his Testator maketh gaine thereof So if the Sheepe or other Cattell of the Testator doe breed viz. beare Lambs Calves Colts c. after the Testators death even these which were never in the Testator shall yet be Assets and so the Wooll growing upon the Sheepe after the Testators death But there is one Case worth the consideration and worthy of some doubt as I thinke and that is this One leaveth to his Executor a Lease for yeares of Land worth twenty pound by yeare and the Executor keeping this in his owne hands one yeare after the Testators death doth make thereof thirty pound in cleare gaine above all charges now whether as to a Creditor this whole thirty pound shall be Assets or onely twenty pound and the Case simply thus put shall be understood of an occupying and manuring without any stocke of the Testators and then if the Executor did stocke it with his owne Sheepe or other Cattell as he must have borne the losse by rot or death so is it reason that if the manurants prove gainefull he reape the fruits thereof in recompence of his adventure and of his industry skill and good husbandry But if the Testators stocke of Sheepe and Cattell were as of necessitie or for the better advantage of the Testators estate continued upon the Lease Land then is it reason that the gaine or losse whethersoever of them God sendeth doe redound to the Testators estate Like Law as I thinke if an Executor finding that he cannot instantly after the Testators death let the Lease Land neare the value shall therefore buy seede-Corne and hire the plowing c. But it may be said that the Lease hath one entire valuation at the first upon the appraisement To this I answer first that the value upon the appraisement is not binding nor much respected at the Common Law if it be too high it shall not prejudice the Executor if too low shall not advantage him but the very value found by Jury when it comes in question whether the Executor have fully administred or have Assets or not is that which is binding Next I say that if a long Lease come to Executors of Land worth an hundred pound by yeare and no sale is made thereof by the space of a yeare or more now the terme continuing of the like value as at first it is no reason but this hundred pound raised the first yeare should goe towards the payment of debts and Legacies rather then any of them should be unpaid This thing I meane the knowledge of them are usefull two wayes viz. First to give light to Executors to discerne what unto them of right pertaines Next to shew unto Creditors and Legatees what and how farre things shall be Assets that is to say goods to enable charge and binde Executors to pay debts and Legacies For whatsoever any of these wayes commeth to the Executors from their Testator or is recovered by any of these Actions shall be in their hands Assetts the Cost and charges of recovering deducted CHAP. VII What manner of Interest an Executor hath in his Testators Goods and Chattels and how different from the common Interest they or others have in their owne proper goods THe Interest which an Executor hath as Executor in the Goods of his Testator is much different from the absolute proper and ordinary Interest which every one hath in his owne prope Goods as may well appeare in and by these points 1. Although if a stranger take away these Goods the Action of Trespasse for the Executor is of generall forme Quare bona sua cepit calling them his Goods whereas a man Outlawed in Debt c. or convict or attainted of felony or treason forfeiteth all his owne Goods yet these which he hath as Executor shall not be forfeited If a Villen be made Executor his Lord cannot take these goods though he may take all the Villens owne Goods and for taking such Goods or for a debt due to the Testator a Villen may sue his Lord. Nay if the Executor grant all his Goods some good
this is by vertue of a Statute There is a president in the Booke of Entries of an Action of debt against the Executor of an Heire by which it seemes that a man binding himselfe and his Heires and leaving Assets the Heire taking the profit becomes so a debtor that his Executor shall be charged And in the Register there is a Writ against the Executors of the Guardian of the Spiritualties of the Arch-Bishop of Yorke for the debt of B. who dyed Intestate and whose Goods came to the hands of the said Guardian viz. the Deane of Yorke In allowance whereof there is a note added of the like Writ brought in K. R. 2. his time and that then a president was alledged of such a Writ in King Ed. 2. his time against the Executors of an Ordinary and that they were inforced to answer unto it So is the opinion of Trew in the time of Edward the third But Ald. opposeth him Also the Rationabile parte bonorum by custome in some places is maintaineable for the Wife and Children against the Executor But no action of account lyeth against Executors except for the King More hereof tit wrong Of Covenants charging Executors VVE have already touched upon Covenants in part viz. where they be expressely for payment of money shewing them to be in Law bonds that is Writings Obligatory whereupon an action of debt may be brought as well as an Action of Covenant though the words of the Deed beare the sound and phrase of a Covenant Yet in some Cases no action of debt lyeth upon a Covenant to pay money as if A. Covenant that his Executor shall within a yeare or such a time after his death pay ten pound to B. now for that no action of debt was maintaineable against A. himselfe it lyeth not against his Executor but onely an action of Covenant as was held in the late Queenes time So if the Covenant be conditionall as thus that if C. doe not pay to B. ten pound then A. will pay it and so also perhaps if the Covenant be in the distinctive viz. to doe such an act or to pay ten pound now if the act be not done yet no action of debt lyeth for the money but onely an action of Covenant But now let us come to the Cases of meere Covenants and see which of them will charge an Executor and which not If a Lessee for yeares covenants to repaire the buildings or to pay the Quit-rents issuing out of the Land let there is little doubt but the Executor to whom the terme commeth must as well as his Testator performe that Covenant although he did not covenant for him and his Executors and yet of these cases doubt hath beene and touching the latter viz. of paying Quit-rents divers Justices in Queene Maries time were of opinion that it was a thing so personall that it dyed with the person and did not charge the Executors Nor is there any contrary opinion expressed in the Booke And since that time viz. towards the end of Queene Elizabeths raigne in the Action of Covenant betweene the Deane and Canons of Windsor and Hide touching reparations at the first much opinion was that onely the person Covenanting was tyed to this performance but after it was resolved that that Covenant did runne with the estate and so both Executor and Assignee bound to performance but in that case it was said by Popham Chiefe Justice that if the Covenant had beene to doe a Collatterall act neither the Executor nor the Assignee had beene tyed thereby and therefore where a Lessee for yeares covenants within such a time to build a new house upon the Land and dyes before that time expired I doubt whether the Executor be bound to performe this or not although it doe concerne the Land let so as perhaps the Rent or Fine was the lesse in respect of this charge of new structure or building which is a great reason that the Executor though not named should be tyed to the performance But if the Covenant had been to build a house elsewhere then upon the Land let or to doe any other collaterall thing not pertinent to the Land lâ—t it is cleere the Executors were named to performe it and yet in those cases if there were a breach or non-performance in the Teâ—stators life time as that the time of performance were expired before his death then it is cleere the Executors were bound to yeeld recompence by way of dammages recoverable in an action of Covenant as both Shelley and Fâ—tzherbert agreed and so also did the Lord Popham agree in the said case of Hide as I find in my owne report of that Case though in the Lord Cooke reporting onely the point in question that be not mentioned Now let us consider of the case where there is no expresse Covenant at al so much as for the Lessor himselfe but onely a Covenant implyed or Covenant in Law as we call it As if Lessee for life make a Lease for yeares and dye within the terme so as the Lessee is evicted by him in reversion or remainder In this case it was resolved in the late Queenes time by three Justices viz. Walsh Browne and Dyer that by this Covenant in Law the Executors were not chargeable and in the same case the Lord Dyer sets downe another resolution after to the same effect but Master Serjeant Bendloes reporting this latter case to be of a Lease made by Tenant in tayle viz. before the Statute of 32. Henry 8. or not warrantable by it sets downe the opinion contrarily viz. that the action was mainetaineable against the Executor This may serve for instance the like being in any other case where the Lessor hath not a good and a firme title but perhaps subject to a Condition or other eviction so as the Lessee cannot injoy the Land according to his Lease But this must be so understood that no eviction or breach of Covenant is in the life of the Testator himselfe for if that be there is no question but the Executor stands chargeable and therefore if one make a Lease of Land by Deed wherein he hath nothing this Covenant is perhaps presently broken and though the Lessor dye before an action of Covenant brought it will be mainetaineable against his Executor though no expresse Covenant This is usefull to be knowne though in these dayes there be few Leases so made without expresse Covenant and the Executors also named And where there is a speciall Covenant in expresse words it doth qualifie the Covenant implyed so as although Words of demise and grant tye the Lessor to a generall Warranty of the title against all men yet it being after covenanted that the Lessee shall enjoy against the Lessor and his Heires or against all claiming under him or his Ancestors Now no eviction by or under any other title giveth cause of Action or
from the very time of making the lease as either by a contract real of quid pro quo or rather by an operation of law or legall constitution or ancient custome of the Realme without any contract of persons Lastly for that the lessor doth not distraine the cattell therefore or in that respect for that they are or were the goods of the testator but for that hee found them levant and couchant upon the land which must afford his rent or a distrâ—sse for it if behinde so as if they had beene any under tenants or strangers Cattell they might have beene distrained Some may perhaps object this reason why these impounded cattell should be delivered in execution viz. for that where otherwise the creditor by statute or judgement should lose all or part of his debt yet by this releefe done to him shall not the lessor lose his rent for that he may at any time after distraine any goods or cattell found upon the ground at any time during the continuance of the lease But here besides the point of delay and stay for this rent which to many is the sole meanes of maintaining their households and families this further is considerable that perhaps the lease may be neere expiring perhaps so highly racked and rented even to or above the value as that the executor having his testators stock taken from it and him by execution will not stock it any more and so the land lying fresh if the lessor shall lose the benefit of his former distres he shall be perhaps without remedy for his arrerages of rent And if the case were of a distres for rent behind after the testators death I conceive though not so strongly for most of the reasons abovesaid that the law would be all one as in the other case for though in this case respect shall not be had to the executors losse upon whose goods the law casts this debt though not the other yet here the point of losse must fall either upon the lessor losing his distresse or upon the other creditor by specialiy or record losing wholly or in part his debt And in respect of this locall tye upon this land for paiment of the rent whereto even the fealty of the lessee and tenure of the land bindeth him and it I think no act that the lessee can do by entring into bonds or statutes or having judgements against him can hinder the lessor or reversioner from taking his remedy upon this leased land for the rent therefore due but rather any other creditor shall be a loser in his debt Doubtlesse iâ— in barre to the avowrie for this rent due either before or since the testators death the executor will plead that the testator was indebted a thousand pounds by statute recognizance or judgement which is more then all his goods amounted unto it will be no good plea but may be demurred upon What if hee plead so much debt of record to the Crowne surely I doubt whether this plea will be allowed in any other Court then the Exchequer yet if these arrerages of rent shall be levied upon the land so as either the executor must pay it or lose the cattell distrained by a returne irreplevisable and then shall not have sufficient to satisfie the debt to the Crown I see not how he shall well escape when pursued in the Exchequer to make up this Crowne debt out of his owne purse which is hard For this we may pitch upon as a Maxime and principle that an executor where no default is in him shall not be bound to pay more for his testator then his goods amount unto Againe it is a rule that where nothing is to be had viz. justly to be had the King loseth his right and our bookes tell us that the Kings Prerogative must not do wrong Potestas ejus juris est non injuriae nam potestas injuriae non est Dei sed diaboli On the other side it may be said that if land leased come to the King by grant outlawry or otherwise the rent reserved cannot be distrained for and therefore is it not very unreasonable nor incongruent that the Kings interest for his debt should make the distres of a subject to stand by and give place This therefore among other of the premises do I leave as a quaere nor is it altogether unprofitable either for an executor or creditor to know what wayes and passages what cases and contingents be doubtfull and hazardous And if in these unbeaten paths where our bookes and relations have held me forth no light expresse or particular I have erred in mis-resolving or missing to resolve I hope I shall without difficulty obtaine pardon Now let us consider of assumptions or promises made by the testator upon good consideration the performance whereof or making recompence and satisfaction for not performing doth lye upon an executor as before is shewed These therefore are to come behinde and give place unto all the former so as an executor this way or for these sued may pleade debts by specialty rent c. amounting to the whole goods And yet these debts by contract or assumption expresse are to be satisfied before legacies be to be had First because by the common law of the land those are recoverable and so are not legacies next because as our bookes speake it concernes the soule of the testator to have aes alienum all duties and debts to other men satisfied before the debtors voluntary gifts or bequests Also these debts by assumption or simple contract are to be satisfied before the reasonable part of the wife or children to which by custome in some Counties they are intitled see 21. Ed. 4. 21. 2 Ed. 4. 13. 2. Hen. 6. 16. And note that in such an action upon the case it is not of necessity to lay or set forth in the declaration that the defendant hath assets to pay all debts by specialty and this also but if there want the defendant must alledge that in his excuse for else it shall be presumed that he hath assets So also in an action upon the case grounded upon the executors owne assumption to pay his testators debt and yet as the L. Cooke conceives and upon good reason as to me it seemes if the executors so promising had not assets sufficient in his hands to pay this debt promised he pleading non assumpsit may give that in evidence for then the consideration faileth as also if there were no such debt due since the plaintife could not have recovered if he had sued and so his forbearance to sue was no valuable consideration Chap. XIII Of Devastation or Wasting THat which S. Paul of dispensers spirituall who are as it were the executors of the last will and testament of our Saviour Christ doth say or enjoyne viz. that they must be found faithfull The same is required of these lesse or inferiour dispensers the executors of mens Wils and
that it is done to the use or profit of the infant Executor then no sale of lease or goods or assent to legacy by such administrator will bind or prejudice the infant Executor But otherwise perhaps if the administration during the minority bee committed generally And if the Testator himselfe making an infant Executor doe also appoint another to bee his Executor during his nonage expressing it to bee onely for the benefit and behoofe of the infant executor I doubt whether this temporary executor stand any whit restrayned froÌ„ what pertaines to the power of an absolute executor for there may be perhaps difference between him to whom the owner of the goods commits the government of them though but for a time and in speciall manner and an administrator so specially made by the ordinary another being presently by the will of the owner or Testator to have the administration in whom for a time legall defect is found But now let us passe over this age of 17. and consider of the infant betweene that time of his being admitted to take upon him the executorship and his accomplishment of his full age of 21. First then suppose that hee doth release a debt due to his Testator whether shall this bee good to bind him and to discharge the debtor aswell as if the executor had bin of full age hee now having proved the will and being by the Law spirituall approved an able executor And this point comming in question in Russells Case in the late Queenes time consideration was had both of divers good reasons for enabling of this release as that an executor represents the person of his Testator and in his right and power doth these acts and not in his owne and therefore his infancy which is a state or condition of his owne naturall person shall no more disable him then it doth the King a Mayor or other head of a Corporation Also divers Bookes were found to runne that way as well in the case of an infant as of a Femme Covert But upon great deliberation in the Kings Bench and upon conference had with the Lord Anderson Manwood and other justices it was resolved and adjudged that the release of an infant executor without payment of the debt or duty would not bind or barre him first for that if it should it would be a wasting or devasting of the goods of his Testator and so would charge his owne goods Secondly It would bee a wrong which an infant could not doe by his release Thirdly It was no pursuit nor performance of the office or duty of an executor but the contrary And upon this judgement a writ of error was brought in the Exchequer Chamber where it was agreed by all that the release was not effectuall nor binding so as this point now had the resolution of all the Judges of England But it was agreed that if payment or satisfaction had beene made then the infant executor might have made a good acquittance and discharge indeed payment it self if proved brings discharge enough except in the case of a single Bill Note that the principall case adjudged was not of a release of any debt or duty by specialty but of trespasse in conversion of goods found or taken in the Testators life time But Poâ—ito that this infant had assented to a legacy whether will this binde him or not for in the said Case of Russell it is said that all things which an infant doth according to the office and duty of an Executor will stand firme now it is part of his office to pay and execute Legacies Yet since this act amounts to a vastation or wasting of the Testators goods aswell as the other in case there remaine not goods sufficient for payment of the debts and consequently here aswell as in the other case the infants owne goods would become lyable to his Testator debts I doubt and incline that it is not nor can stand effectuall for except in the other wee admit a want or possibility of want of assets or goods the release could neither hurt the infant himselfe nor doe wrong to any other and that admitted this case is of like prejudice yet if this asset should bee voyd so also would bee his payment of Legacies and how then were hee an able Executor at the age of 17. yes to sue and to bee sued for debts and Legacies and if upon suit it cannot bee shewed that debts will take up all or disable the payment then happily hee may bee forced to pay Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse or conditionally viz. if there bee besides goods sufficient c. or that else the nonaged Executor may have an action of accompt for the money by him payed to the Legatee and also avoyd his assent where that only needfull But doubtlesse neither the assent of such Executor before his age of 17. nor any payment of a debt to him could bee good although such acts to or by another Executor before the proving of the will would stand firme and good for this infant wants not onely proving but also ability to prove his Testators will yea the will stands suspended and the Testator as it were intestate whilst the administration stands in force so as during that time nothing can bee done by any as executor and therefore there is great difference betweene the cases What if payment of a Legacy bee made to an infant can hee make a sufficient acquittance This I confesse is besides the point in hand yet because it concerns infants and Executors though not infant Executors it is not amisse here to cast some thoughts and words upon the point for that it many times perplexeth both Executors and Legatees First therefore in case the Executor bee of the yeares of discretion viz. 14. I hold it cleare that any payment to him made will stand good for that the Law at that age holds him able to governe and manage his owne Lands held in socage and consequently to receave the rents thereof wherefore whether hee who makes such payment have any acquittance or not if hee have proofe of the payment hee is well enough acquitted from any second payment and if without payment hee get an acquittance it will not suffice the infancy of him who makes the acquittance considered Besides if the acquittance bee as most usually they are but signed onely with the name of the maker and not sealed it is onely an evidence or proofe of payment and no pledable acquittance because no deed so as it nothing differs from proofe by witnesses save that it is not mortall as they But now if the infant bee under the yeeres of discretion what shall wee say to a payment to him specially if hee bee but three or foure yeares old or thereabout heere I thinke caution is to bee used by the executor generally and the surest way is if hee feare to
might it be yeelded at another so as it were at any time before the day But yet there it was held that if no time of assent were limitted then one expresse deniall or refusall would be peremptory so as the refusall were expressed to the party to whom the assent was to be given otherwise if it were but in speech to or among strangers This and the former case 19. Eliz. give the best light to this point that I remember Now for disablement to assent it was held in the fore-mentioned case of Low and Carter that where a terme is bequeathed to A and after the testators death the executor takes a new lease of the same land for more yeares in possession or to begin presently now by this was the terme left by the testator surrendred and drowned so as it could not passe to A by the executors assent after As to the fifth point viz. in what manner a lease for yeares or other chattell reall may be bequeathed to one for a time with remainder to another it hath been heretofore much doubted when a lease for yeares was bequeathed to one for life or for so many yeares as he should live whether the limitting of a remainder thereof after his decease were of any validity in law or not and this doubt had this ground any state for life in the judgement of law is greater than any terme for yeares therefore when a termer hath by his will given his terme or his house or land which hee so holdeth for yeares to one for life or for so many yeares as he shall live this testator and devisor hath not in the judgment of the law any estate remaining in him and therefore it was thought very hard for him to give or limit a remainder to another But after many arguings and debatings it was in the late Queenes time resolved that such a remainder was good and that if the first devisee died before the terme expired that then he to whom the remainder was limitted might enter and enjoy the residue of the terme As for the giving of part of the years to one and the residue to the other viz. If the terme being twenty yeares the Lessee bequeatheth ten thereof to his wife and the remainder to his daughter Of this no doubt ever was but that it was good for that after the first state limitted there remained a further terme viz. ten yeares more in the Devisor whereof he had power to dispose whereas in the other case after the terme limitted to one for life there remained but a possibility that this life should not take up the whole terme But now put we the case a third way viz. that the termor deviseth or bequeatheth the thing in lease to one child intaile with remainder to another and dieth and the first entreth and dyeth without issue now whether shall the next in remainder or the executor of him so dying have the terme residue and this case came in question and was adjudged about the middle of K. Iohn his reigne in the Exchequer for there Master Hamond holding by lease for yeares from the Crowne the manner of Akers in Kent devised the same by his will to Alexander Hamond his eldest son and the heires males of his body with remainder to Ralfe Hamond another son in like manner and the like remainder to Thomas Hamond and made the said Alexander executor who after his fathers decease elected to take as legatory and after Ralfe Hamond died leaving issue male and making his wife executrix Alexander not having issue male granted the whole terme by deed to B and C. for the behoofe of himselfe and his wife during their lives and after to the use of his yongest daughter whom Sir Robert Lewkenor married then Alexander dying without issue male the wife and Executrix of Ralfe Hammond entred claiming the terme and being kept out sealed a Lease whereupon an Eject firmae was brought and a Jury appearing at the Barre in the Exchequer found a speciall verdict in effect Vt supra And in argument of this Case first the maine question was whether this case were all one in Law with the former where a terme was devised to one for life which remainder over so as by the death of Alexander Hammond without issue male the terme should goe to the next in remainder as in the other Case by the death of the devisee for life dying within the terme it should doe And on the plaintifes part it was urged to bee all one so that by vertue of the Bequeasts supra Alexander had an estate to him and his Executors onely so long as there should bee heires males of his body and hee dying without such issue the terme remained to the Executors of Ralfe who had the remainder in like manner and left issue male which still lived and so that seate of Ralfe yet had continuance For it was admitted by the counsell on that side that the terme could not goe to the issue male of Ralfe according to the words and intent of the will since it was impossible to make a terme to descend without an act of Parlament This therefore they said the Law should worke which was neerest to the intent viz. that after Alexanders death it should goe first to his Executors and assignees so long as issue male of his body doth continue and for want of such issue then to Ralfe his Executors and assignees so long as his issue male should last and therefore in this case the issue male of Alex. failing the executor of Ralfe whose issue male fayleth not should injoy the terme and so judgement ought to be given for the plaintife being lessee of that Executor on the other side it was said by the defendaâ—ts counsell that this Case differeth much from the other Case where the terme or Land held by Lease is given but for life to the first with remainder to another which Case as having beene often resolved was clearely admitted to bee good law for in that case the intent of the Testator might and did take effect But in this case if the land should goe to the Executors and assignees of Ralfe Hammon it must goe against the intent of the Testator whose mind and wil was as it appeares by his word that it should goe onely to the issue male of one sonne after another and not to any Executors Now then since this intent was so contrary to the rules of Law that it could not take effect therefore it must be voyd and so all the words of heires Male standing voyd the Will is to be construed as a sole and absolute gift and bequeast to the said Alex. consequently the terme must goe to his Executors and assignees And for this point resemblance was made to a Case resolved in the Kings-Bench where a Lease was made by indent to A. Habend to A. B. and C. for their lives now because B. and C. could take
in reversion or remainder having the freehold or inheritance should dissolve or destroy this terme residue after the death of the divisee for life so as there the freehold should be discharged thereof But Quae. for I have not knowne this in question As for the other point of Fulses case it was in the said later case of Lampett confirmed and admitted for good law viz. that this possibility of remainder could not be aliened nor conveyed to a stranger Now we are come to the ninth point viz. to examine whether any act of the devisee for life can frustrate or defeate him in the remainder of the terme and whether by the act of God viz. the death of him in the remainder before the first devisee for life shall defeat it As to the first it hath divers times been resolved that no grant made by the first man cut off or defeat the second though formerly it were held otherwise but according to the later resolution was it also held or admitted by all in the said case of Hamoâ—d where was such a grant And as this cannot be done by direct grant or alienation no more can it by an indirect or implyed as by taking of a new lease which is a surrender in law of the old lease no more then by an expresse surrender Nor doubtlesse by outlawry whereby the terme of the first divisee is setled in the Crowne But if we put the case further of waste committed by the tenant for life or breach of condition by not paiment of the rent or otherwise these for the whole in the later case and for the part wasted in the former doe so destroy the lease and put the reversioner in Statu quo prius as that all remainders must needs faile so of a feoffement or other like forfeiture by fine As for the death of him in remainder it was urged in the case of Hamond that since it was but a meere possibility if it could not take effect and become an estate in the life of him to whom it was limitted it could not settle in his executor and to that purpose were cited the case of the Rector of Chedington and more expresly as resolved in the point the case of Price and Atmore But the Court resolved and found former resolutions in other Courts that way that the death of him in remainder did not hinder but that it may settle as well in his executors upon the death of the devisee as it should have done in himselfe if he had overlived the first divisee for life If the lessor enter and levie a fine and the divisee for life enters not nor claimes in five years he in the remainder may enter as having a right futurely accrued In the last place wee intermedled only with Leases bequeathed wherein yet is to be understood that what thereof is spoken is to be extended to and understood of all other chattels reall as wardship of body and lands estates by extent upon statutes or judgements termes otherwise than by lease in faires markets rents annuities commons advowsons and other profits yea one single next avoidance of a Church Now we come to consider of bequests personall principally if not only viz. how such may be forfeited lost or revoked First then we will consider of the acts of the legatee secondly of the acts of God thirdly of the acts of the testator The legatee as from the Civilians I learne may forfeit his legacie by his mis-cariage towards the will as if hee use meanes to have it concealed and kept from being knowne and consequently proved So if he accuse it of falsity So againe if he deface or destroy the will Also if being by the will appointed to be tutor or educator of a child he refuseth so to be so saith Master Swinborne but Silvester Prierius seemes to me opposite in that where he saith Si legatum fuerit aliquid ea conditione ut facias aliquid tale legatum non est conditionale sed modale so as he takes away the force of a condition from words conditionall whereas the other without words conditionall raiseth a condition implied Lastly if the legatee presume too farre upon the strength of of the bequest to him so as he taketh the thing bequeathed without the consent of the executor thus also doth he forfait his legacie saith Master Swinborne unlesse the testator did will and appoint he should so doe The falling into enmity with the testator will be considered of more fitly as I take it among the acts of the testator In the next place let us see what acts of shall God cause a legacy not to take effect first thus If the legatee die before the testator this legacie is lost and his executor shall not have it So also saith Master Swinborne if it be appointed to bee paid after the death of the executor and the legatee dieth before the executor it is lost and so also if he dye before the condition performed saith he Let us come now to time of payment and death before it If there bee a day certaine limitted for payment and the legatee die before that day his executor shall have the legacie contrariwise if the paiment were limitted to be made when the legatee should be married but if it were only expressed to be towards the marriage of the legatee and shee die before marriage her executors shall have it saith Swinborne Now put the case that a legacie is bequeathed to B to be payed when he shall be five and twenty yeares old and B dyeth before that age it shall now be paid to the executor and that presently without staying till B should have been of that age saith Prier Nay saith Swinborne if the words of the will be so viz. when he shall come to such an age then if he die before his executors shall not have it at all but if the bequest be generall and further it is added in the will that the testator would have that legacie paid the legatee at such an age there though he die before such age yet his executors shall have the summe bequeathed The difference may seeme very nice yet happily it wants not some probable colour of reason Now lastly let us come to the testators own act who clearly hath power to revoke or countermand any legacie though he revoke not the rest of the will and here first of revocation presumed If there fall out Graves inimicitiae inter legantem legatarium legatum caducum efficitur saith the Summist Sed non propter leves saith he si graves si tamen redeant ad amicitiam reintegratur legatum that is by grievous enmity after arising and never reconciled between the testator and legatee the legacie is dissolved otherwise of a light breach or falling out though it continue untill the death of the testator This I conceived to be rather fit for this place as
the conveyance to another by the common Law amounted to a revocation Therefore was the Statute made tempore Henrici 8. to redresse this viz. that where the King had granted lands or other things to one during his pleasure this should not bee revoked by a grant to another without recitall of the former and declaration that the King had determined his pleasure Being now to consider of relation in the Executors assent it is meete that since these discourses are principally intended for those who are not grounded Students in or professors of the Law that wee shew what wee meane by relation or what it is in Law Thus therefore bee it conceaved that relation is a kinde of fiction in Law making a thing done at one time to bee accepted and repuld or to have its operation as if it had beene done at another time past As for the purpose A doth bargaine and sell freehold lands to B. in August by indenâ—ure which is not inrolled untill October following yet this hath such relation to the date of the indenture that if A. after that and before the inrolment become bound in a Statute or granted a rent charg or made a lease for yeeres or tooke a wife or committed felony yet shall none of these bee of any force to charge or prejudice the state of B. for that the Law adjudgeth him now owner by relation as from the time of the date yea if a servant departing in August for some great breach with his Master do kill his master in October this is in law petty treason as if hee had continued servant when hee did the fact because it relates to the malice conceaved when hee was his servant Now then having shewed that a terme or other chatell reall or personall passeth not nor is transferred in property to the devisee untill the assent of the Executor bee thereunto had Wee now put the case that this assent is not had till a yeere or some such good space after the Testators death and make our question whether this shall have relation to the Testators death viz. to bee in the lawes account as if it had then beene Or perhaps to some purposes so to stand and to others not so That this is usefull and materiall to bee knowne bee it thus shewed One bequeatheth his terme of tithes of an advowson of an House or land by him first leased to an undertenant for rent and dieth in May the Executor assenteth to the bequest in October betweene which two times tithes be set out the Church becommeth voyd rent groweth payable now if this assent shall relate to the Testators death the devisee shall have these else not the like cases may be put of the brood of Cowes Mares and Ewes fallen betweene the death of the Testator and the assent so also of Fleeces of Sheepe shorne c. Now to come to the point it is reported by the Lord Cooke to have beene held in the late Queenes time that this assent shall as betweene the Executor and the legatee have relation to the Testators death yet so that if the Executor before his assent to the devisee of a lease committed wast now the action of wast shall bee brought against the Executor in the Tenuit for the wast done before and not against the devisee in the Tenet But put the case that the legatee before the Executors assent granted the terme to I. S. now if to any purpose this assent shall have relation it shall certainly so bee to make good this grant as making the legatee to bee estated and consequently able to grant before the Executors assent yet doe I not finde any opinion or resolution in the Point but finde it debated at the Barre in the late Queenes time betweene Puckering and Egerton in the case of administration granted to A. after her grant a free terme left by her intestate husband but I finde no resolution therein nor perhaps wants there materiall difference betwixt that case and the other for there the devisee had at least an inception of title by gift of the owner wanting onely a circumstance of assent to perfect it but heere this woman till administration had not so unlesse perhaps the Statute 21. Of Henry the eighth directing or enjoyning ordinaries to grant administration shall amount to a kinde of title ad rem though not yet in re But to returne to the Point of assets where a reversion is graÌ„ted by deed or fine if the lessee a good time after doe atturne this shall have no relation to the time of the grant So as for wast committed or rent growne due between the grant and atturnement the grantee can have no remedy Therefore it is good for him who buyeth or hath any thing of the gift of a legatee to have the assent of the Executor before the sale or gift well testified or if the assent bee not had till after let him take a new gift that hee may not rest in a doubtfull case for besides the premisses that great legist Sir Edward Cooke when hee was a practiser to Master Stubbes of Norfolk for his Sea gave his opinion as I have beene confidently informed that where a lessee for yeeres being outlawed did grant his terme and after reversed the outlawry this did not make good the grant by relation it not being in the grantor at the time of his grant and this hath much affinity with the principall point for there if the relation helpe not the grant is not good from the Legatee Divers cases of bequests considered and expounded IF a termor of an House bequeath his House to B. without expressing how long he should have it he shal have the whole terme and number of yeares So of land Also by the name of the House the Orchards Gardens and Backesides doe passe yea if the House with thappurtenances be bequeathed thereby the lands belonging to the House or used with it doe passe though yet they would not so doe by such words in any lease deede or grant yet by some Civilians or Canonists the Orchard belonging to an House shall not passe by the onely gift of the House without some words shewing the intent of the Testator so to bee or except one gate or doore leade as well to the Orchard as to the House but some other of them hold that it doth passe without any such helpe of circumstance so as it bee adjoyning to the House If a lessee for yeares give his terme by his will to A. hee shall have it without paying any rent for the Executors shall pay it for him a I finde in the Summist but against reason me thinkes If one bequeath his indenture of lease his whole state in that lease passeth So if one bequeath his obligation or other specialty the debt or duty it selfe shall go to the legatee and by the canon or civill law the very action it selfe passeth viz.
shall be said so to come to their hands as to charge them 1 in things reall 130 2 in things personall 132 2 What shall be said such a losing or going from them as to excuse them 137 Chap. XI Of an executor having assets how far and where he is chargeable and lyable to action 1 PAyment of debts by specialty or record 141 2 Of debts or duties by simple contract without specialty 145 3 Of debts without either contract or specialty 149 4 Of covenants charging executors by deed or specialty 150 5 Of wrongs done by testators and how far the executors are lyable to make amends 155 THE OFFICE OF EXECVTORS THe things considerable touching Executors may all in effect be reduced to these three Heades viz. 1. Their Being 2. Their Having 3. Their Doing By the first I intend their creation or constitution with the incidents thereto By the second their Interest Fruition or Possession By the third their Managing and execution of their Office This last was and is the thing principally in my intention and the chiefe ayme of these Discourses but necessarily it must have some Ingredients some Concomitants and some Consequents as he that travelleth from London to Yorke to speake with I. S. must needs passe by thorow other Townes and Villages and speake with divers other persons in his journey and returne To come first to the first therein wee will consider these sixe things 1. Whether an Executor and a Will be such Relatives that one cannot be without th' other and therein of the severall kinds of Wills 2. How and by what words an Executor may be made and created 3. How he may be in speciall manner different from the generall fashioned limitted or qualified 4. Who may make or be made an Executor and who not 5. What one may give or bequeath by Will what not 6. How a will or Executor once made may be unmade and what shall amount thereunto viz. To a revocation totall or partiall what to new Publication Of the relation betweene a Will and an Executor AS to the first the very name of Executor purporteth in the generall one that is to execute somewhat or to whom the execution of somewhat is committed or recommended In our particular therefore an Executor of a Will must needs be such an one to whom the execution and performance of another mans Will after his death is commended or committed Or who is constituted and authorised by the Testator or Will-maker to doe him that friendly office Hence it followes necessarily that a Will is the onely bed wherein an Executor can be begotten or conceived for where no Will is there can be no Executor And this is so conspicuous and evident to every low capacity that it needs no proofe nor illustration On th' other side though much be written in name of a Will many Legacies bequeathed and many things appointed to be done Yet if no Executor be named here is no Will for these two be so relative and reciprocall as that one cannot be without th' other if no Will no Executor if no Executor no Will. Yet here two Cautions are to be affixed 1. That a mans minde will and intent touching the disposition of his goods being declared although for want of naming an Executor he die intestate so as Administration is to be committed Yet for that here is not onely an inchoation or inception of a Testament but so farre a progression therein as Testatio mentis that is the manifestation of the paâ—ty deceased and owner of goods therefore this minde and intention of the Intestate being notified and made knowne to the Judge who is to commit Administration is usually annexed as I take it to the Letters of Administration and meete so to be as a direction for and to the Administrator as well as the Will fully and perfectly made but refused to be proved by the Executor which is usuall Another Caution is That where a man seised of Land in Fee-simple disposeth the same or part thereof by his Will in writing this standeth good for the whole or part according to the difference of Tenure although no Executor be named so as the party dieth Intestate and Administration is to be committed as touching his goods and yet hath a Will as touching his Lands This may seeme strange that the reason thereof is an Act of Parliament inabling to dispose of Land by Will in writing And for that Land is not properly Testamentary neither hath the Executor if any be anything to doe or intermeddle therewith and therefore is the making or not making of an Executor nothing pertinent to the validity or invalidity of this devise or disposition of Land by Will So as though where there is not Testatio mentis there is not Testamentum yet may there be the first without the later Having seene that bequests of Legacies without making of Executors doth not amount to a Will Let us now consider whether the sole making of Executors in the name of a Will without giving any Legacie or appointing any thing to be done by his Executors Whether I say this be or amount unto a Will or not Since hereupon the matter nothing is willed and consequently nothing rests to be executed by the Executors whose Office as hath beene said is to execute the Will Minde and Intent of their Testator and Vbi non est Testatio mentis non est Testamentum saith the Cannonist For answer hereunto confessing that indeede to be the Office of an Executor I yet conceive confidently that in the Case above put there is a good Will and as a Will it is to be proved and approved for these Reasons First for that the maine and principall part of an Executors Office and that which most concernes the soule of the Testator as our Bookes speake is the payments of his debts Now who knowes not but that the very making of an Executor is the constituting of such a person who is to pay all debts and for that cause and end principally is to have and enjoy all the goods and chattels of the Testator and all summes of money to him owing as the naming of A. and B. Executors is by implication a gift or donation to them of all the goods chattells credits and personall estate of the Testator and the laying upon them an Oligation to pay all his debts and making them subject to every mans sute and Action for the same And if the Law speake thus much sense Quod necessario subintelligitur non deest What neede then the party expresse it in his Will If hee had willed more than this as to have given this or that in way of Legacy it had beene needefull for him so to have set downe in his Will but there is no meere necessity that every man should give Legacies the estates of many will not doe more than pay their debts nor oft-times so much so as if they should give
any Legacie it must bee a dead and void gift And suppose a man have much more and intendeth all to his wife brother or sister or other friend his debts being by such person paid since the very making of that party Executor without any more amounteth to thus much and effecteth this what needeth then more words Frustra fit per plura quod fieri potest per pauciora as we often speake touching legall passages It is needlesse to write foure lines where two be sufficient Nor is Testatio mentis here wanting since the Testator hath made knowne who should have the Administration of his goods for payment of his debts and it is to be presumed he had no more speciall Will since hee did not declare more but left his Executor further to have and doe Prout lex postulat And who can say here is nothing to execute Is the suing for and collecting of debts due to the Testator and the payment of debts owing by him nothing Nay it is rather in hoc negotio the Vnum necessarium Besides the making of an Executor is a designment of a person to be the Testators assigne to whom and by whom divers things may be feasible by vertue of covenants bonds or other assurances as after where we come to shew how the Executor represents the person of the Testator will appeare Also of one who as our Bookes often speake is to dispose the Testators goods for the best advantage of his soule but insteede of that since as the tree falleth so it will lye or rest I will say as is most for the honor and reputation of the Testator Of the kinds of Wills NOw Wills are of two kinds or may be two wayes made viz. either by writing or Nuncupative that is by words not put in writing during the Testators life for after the Testators death this Verball Will must be reduced to writing and have the seale of the Ordinary or Judge spirituall thereto affixed and then is it as effectuall and of as good validity as if it had beene in writing in the Testators life time and so doth the Common Law allow and approve thereof But I advise all to make Wills by writing and not to leave them to the doubtfull fidelity or slippery Memory of witnesses for as of Leases Parroll hath beene said that they be Leases perjured or of perjury So of Wills Parroll may be feared Besides many times a man doth speake and declare this or that as part of his Will which his wife child or friend disswading he letteth that purpose and part of Will to fall departs from it Yet witnesses wishing it to stand will perhaps affirme it as part of the Will As for a Will gift and disposition of Land of inheritance if it be not fully written before the death of the Testator or Doner so farre at least as concernes the disposition of Land it cannot be for that part made good by reducing it to writing after his death as for goods and chattels it may Yet if it be written before the death of the Testator though it never be brought to him or reade to him after the writing thereof it is good enough and that not onely for Land as the Case in King Ed. 6. his time was but also for goods and chattels so as there be an Executor named But whether shall wee say that this is a Will Nuncupative or in writing And surely I thinke that this is a Will in writing and not verball only though it want subscribing for wee know that many cannot write their names but onely markes and what is that Nay suppose one want hands and cannot write so much as his name yet doubtlesse this man may make a Will in writing that being written by his direction as his Will which he dictated nor is the subscribing of the name of the maker any essentiall part of a Deede much lesse of a Will which needes not sealing as a Deede doth Now put we the case on the other side that many Bequests or Legacies be named in a Will and many things expressed to be done but no Executor is named in the writing onely by word of mouth A. and B. be named Executors This I thinke confidently is no Will in writing but Nuncupative onely for that one essentiall part of the Will viz. the making of Executors is wanting in the writing Nay the appointing of him Executor who is named in a note left with A. B. is no sufficient making of an Executor saith the Summist And of such Nuncupative Will Master Perkins reasonably saith that it properly hath place when one suddenly taken with sicknesse violent dares not stay the writing of his Will for feare of prevention by death and therefore prayes his Curate and others to witnesse what his Will is To this Will not written there must be seven witnesses and such as come not by chance but are especially called for that purpose saith the Summest What shall amount to a making one Executor or what words requisite thereunto HAving before made it to appeare that the being of an Executor is an essentiall part of a Will and so de esse and not bene esse onely of a Will or Testament Let us now see First by what words an Executor may be made Secondly De modo In what manner it may be done How the power and authority of Executors may be limitted or divided As to the first though one do not expresly by Will name or appoint any to be Executor Yet if by any words or circumlocution he recommend or commit to one or more the charge and office which pertaines to an Executor it amounts to as much as the ordaining or constituting of him or them to be Executors As if he declare by his Will that A. B. shall have his goods after his death to pay his debts and otherwise to dispose at his pleasure or to that effect By this is A. B. made Executor as was conceived by the Judges in the late Queenes time And long before that was it held that if one doe onely Will that A. B. shall have the Administration of his goods he is thereby made Executor Yea in the said late Queenes time one giving divers Legacies and then appointing that his debts and Legacies being paide his wife should have the residue of his goods so that she put in security for the performance of his Will By this without more was shee an Executor as was held by three Iust viz. Manwood Harper and Mounson in the Lord Dyers absence And so also where an Infant was made Executor and A. and B. Overseers with this that they should have the rule and disposition of his goods and payment and receipt of debts untill the full age of the Infant by this were they held to be Executors in the meane time And if A. be made Executor and the Testator after in his Will expresseth that B. shall Administer also
with him and in aide of him Here B. is an Executor as well as A. and if A. refuse B. alone may prove the Will as Executor notwithstanding it be onely said that he shall Administer with A. and in aide of him Thus many wayes and by divers words of implication and may be made Executor although not expresly so named by the Will But if A. be made Executor and B. a Coadjutor without more Hee is not by this an Executor with A. as in King H. 6. his time was held nor hath such Coadjutor or an Overseer any power to Administer or intermeddle otherwise than to counsell perswade and advise yet I thinke hee may and in conscience should so doe and if that will not prevaile to rectifie negligences or miscarriages in Executors hee shall well performe the trust reposed in him if he complaine in the Spirituall Court or Court of Conscience and it is reason as I thinke that so doing upon just cause his charges be borne out of the Testators state or the Executors purse who otherwise would not be reformed How an Executor or his Executorship may be limited or qualified in speciall manner different from the generall NOw let us see how this making of an Executor may be specially qualified And first the time may be limited when he shall begin to be Executor and that either certainely or with some reference to contingencie Secondly the creation may be conditionall Thirdly it may be partiall or dividedly and not entirely As to the first one may appoint lo. At. to be his Executor a yeare or more time after his death and this is good So also if A. appoint B. his sonne to be his Executor when he shall come to his full age and in the meane time he dieth Intestate Againe one may make and appoint the Executors of A. to he be his Executors and then if he die before A. is Intestate untill A. die This creation may also be conditionall and the condition may either be precedent or subsequent In the time of King H. 6. one named A. and B. his Executors and if they would not take it upon them then C. and D. should be his Executors and then there A and B. refused and the question was whether in sute against the debtors of the Testator A. and B. should joyne with C. and D. as where foure Executors being named and two refuse and the other two prove the Will yet all foure must be named in sutes against the Testators debtors as was there admitted But in the principall case it was resolved that the sute should be onely in the name of C. and D. for that the appointing of them to be Executors if A. and B. refused did imply that then they onely should be Executors And here all foure were never made nor intended to be Executors but A. and B. upon a condition subsequent that they should not refuse and C. D. upon a condition precedent viz. if A. B. did refuse It is usuall to make one or more Executors conditionally that they put in security to pay Legacies or in generall to performe the Will nor was it ever doubted as I thinke but that this was good yet I should advise that such condition be plainely thus expressed viz. either thus that if I. S. doe put in security c. by such a day that then hee shall be Executor else not or thus viz. to make him Executor conditionally that before he doe Administer Funerall perhaps excepted hee shall put in such security else perhaps he being Executor till the Condition broken in that meane time may have disposed of all or most part of the Testators estate In the late Queenes time there was a Case remarkeable to this purpose One Willed that if his wife suffered I. S. to enjoy Blackeacre being belike part of her Joynture for three yeares then she should be his Executor or else A. B. should and the question was in the Common Plees whether presently before th' end of the three yeares shee were Executor or not till shee suffered the Land to be enjoyed three yeares and it was held by all the Judges but the Lord Anderson that she was presently Executor untill she should disturbe I. S. c. for upon that done it was agreed that the Executorship would by vertue of the Condition be transferred from the wife to A. B. But now during these three yeares might she have disposed of all the goods of her husband yea within one of these three yeares and lesse time and then have broken the Condition and have left to A. B. a dry Executorship Now to the third Point one may divide his Executors power three wayes viz. Really Locally or Temporally Really thus Hee may make A. his Executor for his plate and housholdstuffe B. for his sheepe and cattle C. for his Leases and states by extent D. for his debts due to him and so divide the power and Administration of his Executors at his pleasure He may divide them also or their power Locally viz. A. for his goods in Com. Buck. B. for those in Com. Oxon. and C. for those in Com. Berk. He may also divide them in time viz. his wife or any other person to be Executor during her life or during the minority of his sonne or so long as shee continues widdow and after his sonne to be Executor So of like limitations or divisions either for time place or things wherewith they shall intermedle Nay doubtlesse one may be made Executor for one particular thing onely as touching such a Statute or Bond and no more and thereof good use may be made as I thinke thus Many have Bonds Statutes and Recognizances for warranty or enjoying of Land or freeing or saving harmelesse from incumbrances in generall or particular Now he which hath these selling the Land may by Letter of Attorney lawfully assigne thē to the party who buyeth the Land or Lease but this notwithstanding the interest remaines in him who selleth and by his outlawry they may be forfeited or by him released any Bond to the contrary notwithstanding and if he dye the interest in Law will be in and goe to his Executors and in their names onely Sute or Execution may be had and maintained Now then if the Vendor besides assignement make as to this Statute Recognizance or Obligation onely the Vendee Executor By this the interest after death of the party will be in him actually and really to his more safety since none but hee can release or discharge nor any other name neede to be used to sue or take benefit thereof But Quaest If the Vendee his Heires and Assignes may be made Executors so as that securitie shall go to them one after another without renewed making of Executors Thus if the party make no other Executor he dieth Intestate as to the rest of his estate and as to this specialty onely shall have an Executor
other the goods chattels or credits he hath as Executor the property not being altered for that he hath not them properly as his own or to his owne use onely he may make a continuation of the Executorship and his Executor shall have them as Executor to the first Testator as was resolved by the Judges of both Benches in the late Queenes time And if he be Administrator the bequest is then also voide nor then will they goe to his Executor but to a new Administrator but on his death-bed he may give them by Word or Deed though not by Will Next if a man have debts owing to him as many have much it is considerable whether by way of bequest in his Will hee can give away these to any from his Executors And doubtlesse he cannot effectually in Law they being not subject to assignement unto any except the King So as if he give such a debt to A. and such to B. yet must the sute for them be in the name of the Executor and so also the Release or Acquittance for them and not in their names to whom the bequests is But when they be received if there be no debts to pay the Executor ought to deliver them to the party to whom the bequest is and therefore may be compelled in Court of Conscience or in the Spirituall Court Therefore the Case of the bequeathing money payable upon a Morgage is in this manner to be understood to be good and not otherwise as I take it He that is joyntly with any other estated in Lands or goods can give no part by his Will but all will survive but by Act in his life hee may dispose of his part and the Assignee may dispose of his moiety by Will yea though it be halfe an Horse or Oxe that cannot be divided So of a Lease of Lands or Tithes or Grant of goods to two habendū one moyety to the one and the other moyety to th' other each may give his moyety by Will But if one be possessed or estated for yeares by Lease Wardship or Extent c. in the right of his wife or have the next avoidance of a Church in her right he cannot by Will give or bequeath any of these but notwithstanding they will remaine unto his wife upon his death but yet his Gift or Grant of them taking effect in his life time would binde his wife and carry away the interest from her If one be Tenant for the lives of one or more others as oft times men take Leases for lives of yonger persons than themselves this cannot be by Will disposed of for that it is no chattell nor is it within the Statutes of Wills for that it is no state of inheritance Therefore let the party looke to convey it in his life time lest it goe to an Occupant viz. him who first shall enter If it be a State in Land hee must either make Livery have a bargaine and sale inrolled or covenanted to stand seised to the use of his wife or some of his blood or make a Lease for yeares determinable upon those lives Good it be by bargaine and sale for yeares if the thing be in Lease that so without Inrolement or Atturnement the Rent may passe else a bargaine and sale may be made for a moneth or such like time and then a Release or Grant of the reversion in stead of Levery Seisin But if a man have a Lease for never so many yeares determinable upon life or lives that is if such or such live so long which unskilled persons call a Lease for lives this State may well enough be given and disposed by Will because it is but a chattell If a man seised in Fee or in Tayle of Land having Corne growing upon it and by his Will doe give the Corne and die before severance this is a good bequest because the Corne should have gone to the Executor So it is also of a Parson touching his Glebe and a man seised in the right of his wife or his owne right but for life But as for trees growing upon the ground these can no otherwise be given by Will then as the Land it selfe upon which they grow may be given of which matter as not pertaining to the Office of Executors viz. How and in what manner Lands may be given by Will I entend not to treate in these discourses Of the Revocation and Countermand of Wills and new Publication HAving considered of the making of Wils and Executors Let us before wee come to the Probat consider of Revocation for that may take away the force of a Will rightly made A Will therefore having two parts viz. Inception which is the making and Consummation which is the death of the Testator or maker of the Will there is power in him at any time before death to revoke or alter his Will at his pleasure Consider we therefore of Revocations and also of new Publications or Reaffirmance of Wills in whole or in part As therefore a Will may bee made by Word So also may a Will made in Writing be by Word revoked or disanulled for since every making of a later Will is a Countermand and suppression of the former Will and since a Will may be made Nuncupatively or by Word and so by making a verball Will one may revoke a Written Will It will thereupon follow that one by Word may expresse the alteration of his minde thus farre that the Will by him formerly made shall not stand but be revoked and annulled and this will stand and be effectuall so as if he after dye without making any new Will or new Publication or Reaffirmance of the former he dyeth intestate or without will As a Will may bee wholly revoked so also in part Hereabout a good resolution was in a Kentish Case where one Ryete by his Will in writing did give some Gavel-kinde Land to one Harrison and five dayes before his death said in the presence of witnesses that this gift should not stand and that he would alter it when he came home desiring them to beare witnesse of his Revocation Now before he came home he was killed by the said Harrison who caused the Will in writing to be proved and after he was attainted and hanged for the murther and his Sonne by the Custome of Kent viz. the Father to the bough and the Sonne to the plough entred into the Land and this manner of Revocation by word onely was held sufficient although the Will in writing were not cancelled nor defaced And the like resolution for verball Revocations is implyed in the Case of Forse and Hembling where it being resolved that a Feme Covert or marryed woman by word Countermanding and Revoking her Will formerly made when she was a sole or unmarryed Woman this was not effectuall nor of force by reason of her Coverture taking away the freedome of her
Will hereby it is implyed that another who hath freedome of Will may by Word sufficiently revoke a Will in writing and so was it since also admitted in the Case between Sir Edward Mountague and Ieoffryes touching the Will of Sir Io. Ieoffryes but there a difference was conceived betwixt saying I will revoke my Will which only expressed a purpose or intent therfore was no present Revocation and saying I doe revoke it or it shall not stand or my heire shall have my Land which crossed the gift of it by the Will And as Wils may be wholly or in part revoked so may also the executorship of one or more of the Executors and yet the Will may stand in all the other parts so as there be any one Executor or more unrevoked but if all be revoked then the whole Will is revoked because no Will can stand without Executors and this Revocation may be by Word onely without being expressed in the Will or any other writing But I would wish all to expresse such revocation in the foote of the Will or that the name or names of the Executor or Executors so revoked be expunged or blotted out of the Wil and that this be done in the presence of some witnesses to testifie the act and intent of the Testator Againe Revocations may be by act in Law as well as in fact or by direct and expresse termes as in the said Case of Mountague and Ieoffryes where Land being devised by Will and the Devisor after making a feoffement though there were some defect in the Livery to make it effectuall or if he made a bargaine and sale that was never inrolled or granted the reversion but no atturnement had so as the Land passed not yet in all these Cases the Will or gift of Land stood revoked But in Case he had onely Covenanted that he would have made such an estate and not done it this was held to bee no Revocation And so by some in case he doe but make a Lease leaving the Fee simple as it was but of this Quare And if a difference may not be betwixt making a Lease for yeares and a Lease for life which altereth the Freehold If a Lease for twenty yeares be bequeathed to I. S. and after the Testator maketh a Lease for fifteene yeares reserving a Rent I take this to be no Revocation of the bequest but if the Testator after this Will made take a new Lease for a longer terme so as the former Lease is surrendred in fact or in Law this must needes be a Revocation of the bequest or at least an adnullation thereof and that although the bequest were generally of his Lease not mentioning the number of yeares for this which he now hath is another Lease and not that which he had at the time of the making of the Will So if one give his blacke gelding by Will and after before his death he selleth or giveth away that Horse and buyeth another blacke one this new gotten Horse shall not passe by the Will because it was not the Testators at the time of making his Will So also if the Crop in the Barne be bequeathed in October and the party lives till that time twelve month having sold that Crop and Inned a new this later Crop shall not passe by the Will and the former cannot Againe as revocation may be by alteration of the State of the Devisor in the Land Devised so may it also be by alteration in some case of the state or quality of the person of the Devisor As if a woman sole make a Will and after take a Husband this without any more as is resolved in the said case of Forse and Hembling doth worke a Revocation or adnullation of the Will for that else it should be irrevocable since shee having lost the freedome of her Will cannot actually and directly make a Revocation as we before have shewed But notwithstanding her Will be revoked yet in case her Husband before or after marriage with her were bound or Covenanted to performe this womans Will if he so doe not by payment of the legacies therein bequeathed his Bond or Covenant stand good and be sutable against him as was adjudged touching the Will of Elizabeth Smaleman marryed after her Will made to one Wood. Who first was bound to performe it yet another case there is of Alteration in the state of the Testators person which makes no Revocation of his Will As if he being of sound minde and ability make a Will and after becommeth franticke In this case this is no Revoction So as his Will stands till his death irrevocable if he recover not Now of a Will Revoked there may be a reviver by a new Publication and therof now Of new Publications HAving shewed how a Will may be revoked and so lose its force let us now see how without making a new Will that so revoked may be revived and set on foote againe And that is divers wayes as First by a Codicell annexed after thereunto as was resolved betweene Betford and Barnecot in the Kings Bench. Secondly by adding any thing to the Will or making a new Executor c. Thirdly by expresse speech or word that it should stand or be his Will as I conceive to have beene the better opinion in the said case of Mountague and Ieoffryes wherein yet was much difference of opinion both touching Revocation and new Publication If a man having made a former Will doe make a latter which is more than a bare Revocation yet if afterward lying upon his death-bed and speechlesse both these Wills be delivered into his hand and he required to deliver to one of his friends about him that Will which he would have to stand and to keepe in his hands th' other he thereupon delivereth to the Minister or other his neighbours the first made Will retaining in his hands the latter as was done in the time of Edward the third Here the former Will though made voyde many yeares before by the latter is revived and shall stand as the Parties Will. But now put the case that a Bequest at the first is voyde yet by Publication after it may be made good as if one give to Sar. his wife a peece of Plate or other thing and hath no such Wife at the time but after marryeth one of that name and then publisheth his Will againe now this shall bee a good Bequest So if one Devise Lands or Goods which one hath not If he after doe purchase the same and then say that his Will before made shall stand or be his Will It shall be a good Will and Bequest for this is in effect a new making And though most of the precedent cases be of Revocation of particular parts of the Will and not of the totall Yet first be it considered that that part so revoked was in effect the substance of the Will Next it is easily discerned that
heire may distraine them as dammage fesante Where the Testator recovered Land and dammages or a Deed and dammages he dying before execution the Heire shall have execution for the Land or Deede and the Executor for the dammages but temp Edward the 4. it is said that untill the Heire sue a Scir sac the Executor cannot sue execution for the dammages If a Creditor be made Executor by his Debtor and pay himselfe part out of the Goods he cannot sue the Heire for the rest because the debt cannot be apportioned but otherwise he may saith the Book yet Quae. if he doe take upon him the Executorship and have goods sufficient to pay all If a debt be recovered against one who dyeth before execution sued leaving goods sufficient to satisfie now shall not the Land descended to the Heire be charged therewith nor by like reason any land conveyed after Judgement See a good difference where land is conveyed upon condition of payment to the Vend or his Heires or assignes and he dyeth before the time and where it is to be paid to the Vendee his Heires or Assignes and he dyeth in the first case payment shall be to the Executors but not in the other What things pertaine to the Heire and what to the Executor is before shewed As for Frowickes opinion that where goods be mortgaged upon condition that if the Heire or Executor pay c. here if the Heire make payment he should have the Goods I see not how that can be A Directory for the following Chapter A. All as but one represent the Testators person and must joyne and be joyned in suite e contra B. Where one alone must answer suite and how C. When they differ in Plea the best shall be taken but one may confesse alone D. One aswell as all hath may give assent or release the whole E. One cannot give nor release to another nor divide F. The possession of one is the possession of all to what purpose G. If the surviver dye Intestate the Testator is intestate though some other Exec. left an Executor H. Included in the person of the Testator and represents it Is his Assignee all one e contra I. What change by death of the Testator touching proceeding in suite K. Proceed to or in Execution where without Scire fac M. Whether the Executor stand in his owne quality or his Testators N. Where one alone may sue O. In suite for them such as will not joyne shall be severed and th' other may sue and prosecute alone consequents inde P. Death of one Executor Plaintiffe or Defendant where abates Writ CHAP. IX How Executors stand betweene themselves and in representation of or relation to the Testator As his Assignee or Deputy or as the same person with him and where and to what purpose as other persons FIrst all of them doe represent the person of the Testator and therefore must they all joyne in suite against others and in suite by others they must be all made defendants or at least so many of them as do Administer for though the Executors themselves must take notice by the Will how many Executors be and must frame their suite accordingly Creditors and strangers neede not take notice of any more then doe Administer and Execute the Office of Executors For this reason as I take it in the time of King Edward the 3. where two Executors were of a terme and the reversion was granted by Fine mentioning but one termor and thereupon a Quid juris clamat accordingly brought against that one Executor this was held good enough though the other Executor was not named in the Suite belike because that one who indeed was the Testators Wife did onely occupy the Land and take the profits thereof for else since all the Executors doe represent the Testators person all must have beene named Therefore did the Judges resolve in the time of Henry the 4. that where a Lessee for yeares made two Executors and one of them was distrayned by the Lord for Rent who avowed upon the Lessor that Executor should have aide of his fellow Executor to the end that both might have aide of the Lessor which one alone could not And upon this reason viz. that the Executors represent the person of their Testator as one person for so speakes the Parliament It was enacted in time of Edward the 3. that the Executors though never so many shall have but one essoyne neither before appearance nor after because their Testator whose person they represent could have had no more It is further also enacted by the said Statute that where two or three Executors or more be they being sued in an action of debt though all doe not appeare yet such one of them or more as doe or doth appeare at the Graunde distresse shall answer alone without his companions And this Statute hath beene taken by equity in three respects First touching the persons that it shall extend not to Executors onely but also to Executors of Executors yea to Administrators also though the Statute speake onely of Executors Secondly touching the actions whereas the Statute speakes onely of the Action of debt it is taken by equity to extend to other actions as the Writ de rationabili parâ—e bonorum and detinue yet perhaps this latter action will be said not to be maintaineable against Executors for their Testators act but for their owne onely But we yet are not come so farre as to determine what is maintaineable but whether before all the Executors doe appeare he or they which have appeared shall be put to answer and so to bring it to decision whether the action be maintaineable or not I thinke also that in the action of covenant and all other actions against Executors as Executors he which appeareth must answer without his companions though the greater opinion in the Quadragesimes were contrary touching the action of Covenant But as for the sub paena against Executors which is to make them to answer to a suite in equity that hath beene temp E. 4. taken to be out of the reach and intent of the Statute So also of the Latitat in the Kings bench as was held in the same Kings time except all the Executors making up the whole representative body of the Testator be in the custody of the Marshall one or more of them who are there shall not be inforced to answer and so was it also lately held in the Kings Bench where Master Justice Houghton gave an excellent reason this case is out of the said Statute viz. for that this Writ doth not mention any debt nor name the Defendants Executors Thirdly and lastly that Statute is extended by equity to other Writs or Proces for where the Statute speakes onely of the
Grand distresse and the Executors appearing thereupon It hath beene many times ruled that when he or they appeare upon the Attatchment Capias or Exigent answere must be though the rest appeare not for so the word Distresse is taken for all compulsary meanes or enforcement of appearance But where the Statute reacheth not viz. when the Proces is determined against one or more as by Outlawry c. there the rest must answer by the rules of the Common Law except it be in the case of Husband and Wife Executor for there the Wife cannot answer without her Husband nor doubtlesse can he without her where she and not he is Executor but where both be Executors there he may answer without her but not she without him When Executors as Defendants have appeared if any one of them will confesse the Action this bindes and concludes the rest but if one will plead one plea and the other another that say some shall be received which is best for the Testators state so where they sue such as will not prosecute shall be severed and the rest without them may proceede and in like manner where they pray to be received to defend their terme and one of them after makes default it shall not be the default of all but the rest or he if it be but one who appeares shall be received to uphold the defence of the terme Thirdly so where they pleade a release to the Testator or themselves one after making default this shall not be nor make a totall default in the Executors to induce a judgement or condemnation against them Yet in truth each Executor hath the whole of the Testators Goods and Chattells be they Reall or Personall and each may sell or give the whole One of them cannot give nor release to the other his Interest and if he doe it is voide and he who releaseth shall still have as much interest as he to whom he released because each had the whole before upon this reason long since where one of the two Executors released but his part of a debt it was held that the whole was discharged and so if one Executor grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no parts or moyeties betweene Executors Therefore also though a lease for a thousand yeares of a thousand acres of Land come to two Executors or more no partition or division can be made betweene them because it is not betweene them as betweene joynt Lessees of Land where each hath but a moyety in interest though possession of or through the whole Amidst Executors each hath the whole and therefore if he graunt his part he graunts the whole But one Executor may demise or grant the moyety of the Land for the whole terme and so may the other doe and this way they may settle in friends or others trusted for them a moyety for each either in severall or undivided but one of them cannot make a lease to the other of any part for he had the whole nor can one sue the other as Executor yet if the Testator devise to one of his Executors all his goods after such debts and Legaâ—ves satisfyed there after those satisfyed that Executor may take the Goods and maintaine an action of Trespasse against the other Executor if he take them from him and consequently an Action of Detinue for keeping or detaining them but this is as Legatee his owne assent perfecting the Legacie The possession of one Executor is the possession of all the rest so as if one appearing to a Sute and the other making default in whose hands all the goods be which are not administred if I say here hee that appeares pleades that he hath nothing in his hands this shall be found against him for whatsoever any of the co-executors hath hee also hath and is in his possession and so shall the Creditor recover and have judgement to be satisfied out of the Testators goods as in his hands And therefore if goods be taken from one all may maintaine an Action of Trespasse thereupon for the possession of one is the possession of all But the possession of one shall not be so the possession of all as to charge the others owne goods wherof more elsewhere Where two Executors be made the one making a Will and executors and dying if the other die after intestate now shall not the Executor of him who first dyed be Executor to the first Testator but hee is dead intestate because the surviving Executor is so dead and in him the Executorship was wholly and soly setled by the death of his fellow before him So Administration de bâ—nis non admin shall be committed The Executors or Executor if but one so represents the person of his Testator that hee is in Law his Assignee by the very making of him Executor so as if one covenant to make a Lease to I. S. and his Assignes by such a time and I. S. dieth before that time and before the Lease made now must the Lease be made to his Executors as his Assigne representing his person so also in a condition to pay to the Feoffor or his Assignee yet a Lease to A. and his Assignes during the life of B. shall not goe to the Executors of A. So where in a generall pardon by Parliament there is an exception of persons outlawed after judgement unto the person so out-lawed shall satisfie the Creditor who hath out lawed him If the Out-law die before this done his Executor as representing his person may make satisfaction and so make the benefit of the pardon to extend to his Testator for saving his goods as if himselfe had satisfied his Creditor though he left him unsatisfied when he left the world d. em obiit extremum Yet where A. sold Land to B. upon Proviso that if he payed â—o B. his heires or assignes c. B. died A. payed at the day to his Executor and it was doubted that it was not good for the word Assignee could not reach to him being no Assignee of the Land and where the Executor brought an action of account upon a receipt by the hands of the Testator the Defendant could not be admitted to wage his Law for that this was held a receipt per autermains yet it is cleare that if one by Bond or Covenant tye himselfe to pay such a summe at such a day not mentioning his Executor at all yet is the Executor bound as included in the name or person of the Testator And where the Statute 23. of Henry the eight gives the Writ of attaint in the course there mentioned against the party that had judgement it lieth against his Executors if hee be dead but
Executor if perhaps benefit might accrue to him by the Executorship as happely the discharge of a debt owing by himselfe c. Other Cases there be wherein the Executor will stand more clearely discharged As if the Testator left a Lease for yeares state by extent wardship or other Goods whereto he had but a defesible title and they be evicted after his death So if he left a Ship at the Sea with much Goods and Merchandises which are drowned in the returne never arriving in safety So also if he left a flocke of sheepe tainted with the rot which dye shortly after him in none of these three Cases doubtlesse shall the losse fall upon the Executor But to put a Case of more doubt what if a Lease for yeares come to an Executor subject to a Condition for payment of Rent or a summe in grosse and the Executor failes in payment whether shall this losse fall upon the Executor to be made good to Creditors or Legatees out of his owne substance or not To this I must answer by this distinction viz. If the Executor had taken the profits of this Land so long as to furnish him with money for this payment or if he had other Goods of his Testators in his hands to supply the payment then is it his default that the money is not payed and he must beare the smart thereof otherwise not for he is not bound to make payment out of his owne Goods yet is he a sullen and unkinde Executor who will not so doe when as he may repay and satisfie himselfe by the profits thereof after Like Law if the Executor suffer a bond of a hundred pound to be forfeite for not paying of fifty pound having sufficient in his hands So also of a Recognizance Statute or Judgement defeazansed upon payment of a lesse Summe yea a lesse doubt of all these Cases then of the forfeiture of the Lease for yeares for haply the Executor had time to have sold the Lease and made money thereof towards the payment of Debts the omission and neglect whereof may be imputed unto him as a default justly occasioning recompence to be by the Law required from him But perhaps he may excuse himselfe that he could not find a Chapman who would give him to the value thereof hereunto yet reason can easily reply that it had beene much better to have sold it under the value then to have lost the whole value by exposing or abandoning it to a totall forfeiture CHAP. XI How farre and where an Executor having Assets is chargeable or lyable to Action HAving considered what things shall come to Executors and be Assets in their hands for the performance of the Will Let us now consider what thing the Executor is bound to pay satisfy or performe and what not where he is chargeable and where not this being admitted that he hath Assets viz. sufficient wherewith to performe Here we will consider of these parts 1. Of Debts by Specialty or Record 2. Debts or duties by Contract without Specialty 3. Debts without either Contract or Specialty 4. Covenants by Deed or Specialty 5. Wrongs done by the Testators TOuching Debts by Specialty which are the most usuall and common obligements it will not be impertinent to give a little light touching the validity of a Specialty and the extent of it to Executors The most doubt will arise upon Bills and such Writings Obligatory made not by Scriveners nor Clarkes in common forme but by others otherwise for haste or through simplicity Thus long since we finde a Writing made by A. to B. Memorand that I have received of B. ten pound which I promise to pay c. This being sealed and delivered was held a good Obligation by Brian and Catesby So if the words had beene onely I shall pay to B. ten pound and whether such words or the like as Covenant or Grant to pay be in the forme of a Bill or Bond or in an Indenture or Articles it is a sufficient ground for an Action of debt And though it should be miswritten Wigint for vigint or fiâ—teene for fifteene yet shall it be favourably construed and held a good specialty of debt as hath beene resolved in these and like cases and so also notwithstanding false Latine in the Obligation or the plurall number for the singular number or words of repugnancy or non-sence yet if there be words whereby it appeares that A. is a debtor to B. and it be sealed and delivered it is a good writing Obligatory yea though it want the words of conclusion viz. in witnesse whereof as the Lord Dyer reports to have beene resolved although the contrary were held in foure severall Kings times before as our Bookes shew Now any such Writing Obligatory doth determine or drowne any duty by Contract because Specialty is of a higher nature So as if A. and B. doe bargaine with C. to pay him a hundred pouud for Corne or other thing and after C. take some such Writing Obligatory as aforesaid of A. now by this is B. discharged of the debt because he stood charged onely by the Contract which is extinguished by the said Specialty As for the extent and operation of these Specialties to and upon Executors we must know that an Executor doth so represent the person of the Testator and is so included in him as that every Bond or Covenant by the Testator made for payment of money or the like reacheth to the Executor although he be not named viz. that he doth not Covenant for nor binde him and his Executors by expresse words and yet the Heire not named is not bound though there be never so great Assets or Land discend unto him Now touching debts upon Record much need not to be said except of those by Statute Marchant for to debts and dammages already recovered against the Testator and to debts by Recognizance the Executors liablenesse is somewhat cleare and conspicuous Yet other inferior debts upon Record may fitly be thought of as Issues forfeited Fines imposed by Justices at Westmin or at Assises Quarter Sessions Commissions of Sewers of Bankrupts By Stewards in Leetes or the like for all these are debts of Record which Executors stand charged withall So also if the Testator were before Auditors found in Arrerages of Account being a Bayly or receiver For these Auditors are by Statute Judges of Record but if the Account were made onely before the party to whom the Arrerages pertained or but before one Auditor onely it is out of the Statute which speakes of Accounts before Auditors in the plurall number Therefore the Executor not chargeable because the Testator might wage his Law in those cases not in the former And whereas exception was before made of a debt by Statute Marchant it was by reason that the Lord Bro. tells us that if the conusor in that case be returned dead
no remedy appeareth for the Conusee to have execution of the Goods of the Conusor but onely of his Lands If this should be thus it were a very mischievous case for many bound in Statutes have no Lands but Leases and goods of great value and if by their death their Goods and Chattells should be set free from this Statute and the Creditor without remedy the Law were very defective and it were so much the more strange in this Case because the Statutes of Actoâ— Burnell and Mercatoribus seeme to pitch principally upon Goods and to tend unto assurance betweene Merchants who usually are not Landed men But that the Law doth give remedy in such Case as well against the Goods as Lands of the deceased Conusor appeares by the resolution of late made in what Order and Precedence Statutes are to be satisfyed by Executors as after wee shall see Of Debts by Contract without Deed as Leases Paroll c. COntracts are of diverse kindes and we will begin with those in the realty as most worthy If therefore one be Lessee for yeares or for life without any Indenture or Deede as he may be and his Rent being behinde he dyeth now is the Executor lyable to the payment of this Rent without any Specialty for that his Testator if he had beene sued in his life time could not have waged his Law But if the Lessâ—e for yeares in his life time sell or grant away his terme or Lease although he still lye at the stake for the Rent to grow due after untill the â—essor accept the Assignee for his Tenant Yet if the Lessee dye his Executor shall not be charged for any Rent due after the death of his Testator But what if the Lessee doe not Alien or assigne his terme but dye thereof possessed and the Executor perceiving the Land not to be worth the Rent Waiveth the same Yet the Lessor will not enter thereinto nor intermedle therewith whether may he yet charge the Executor with the Rent during the terme I answer that if he have assets that is sufficient for payment of this and other debts he cannot Waive this Lease but shall be tyed to answer this rent though much more then the Land is worth for the taking of the Lease is much of the nature of an Obligation to pay money Yet because it is yearely Executory the Executor may Waive it in case his Testators estate will not supply and beare that losse But what if there be assets to beare this yearely losse for some yeares but not during the whole terme I think in this case the Executor must pay the Rent so long as this Assets will hold out and then must Waive the possession giving notice to the Reversioner and this I thinke he may doe well enough notwithstanding his Occupation of the Land divers yeares after the Testators death because that was not voluntary but as of necessity yet this I leave as a Quaere to be well advised of with good counsell Of contracts personall VVHere the Testator might wage his Law there the Action lyeth not against the Executor as hath beene touched and therefore he is not chargeable in an action of debt upon a simple contract as by reason of this or that to his Testator yea though it were the Inheritance of Land which was sold so as the sale were without Deed or though by Deed yet if no counterpart were under the hand of him to whom the sale was made And the custome of London to the contrary viz. that an Action of debt should be maintained against Executors upon a contract was held void at least no Good plea against other Creditors that such a debt was recovered against the Executor or paid by him as was towards the latter end of the late Queenes time resolved though in the beginning of her time it was a demurrer Yea though such a debt grew for the most necessary thing viz. meate and drinke which bindeth even an Infant to payment yet will it not charge the Executor of a man of full age but this is meant where the contract was onely by Word for where the Testator putteth his Seale to any Deede or Writing made upon such sale this is more then a simple Contract and taketh from the Vendee his wager of Law and so chargeth the Executor But if the Testator seale but unto a tayle or tally with scotches expressing a deâ—t this is no such Specialty as shall chaâ—ge Executors Yet in some Cases without any seale at all the Executor is chargeable But although no Action of debt lyeth against the Executor upon such a simple contract yet may the Creditor in that case maintaine an Action upon the Case grounded upon the assumption implyed though not expressed as now standeth resolved by all the Judges of all Courts at Westminster though heretofore there hath beene much difference of opinion thereabout And indeed thus the Executor is charged in matter for a simple contract though not in manner of a Debt but as for breach of promise making recompence in dammages instead of the debt And the chiefe reason for it is because the Testator could not have waged his Law in this action upon the case against himselfe though in debt he might Where the Testator retaineth servants in Husbandry or otherwise and dyeth there being wages due to these so retained the Executor is lyable to an action of debt for the same by reason that the parties were compellable by Statute thus to serve and therefore the Testator could not have waged his Law but in case of Servants not compellable as Wayters or Servingmen as wee call them no action of debt lyeth against the Executor for their wages though against the Testator himselfe it doth for the Contract is sufficient to charge him who made it See of account after Where Executors shall be charged without either Contract or Specialâ—y VVHere a Prisoner oweth money to a Jaylor or Keeper of Prison for his dyet or victualls and dyeth his Executor shall be chargeable for this debt because it is for the Common wealth to have Prisoners kept which cannot be without affording them victualls Also where one hath a Pattent or Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Crowne and delivereth it to him he then having money of the Kings in his hands if he pay not the same but dye his Executor shall stand chargeable with the payment thereof So for Arrerages of Account before Auditors if more then one but this is debt of Record in Law So if any Lord of free Tenants doth levy ayde of them for the marriage of his eldest Daughter and he dye before she be marryed she may recover this money by an action of debt against his Executor but
the statute marchant was provided consisteth usually more in goods then lands besides the plea of Harrison administrator of the goods of Sidney in barre of Greenes action of debt upon an obligation viz. that the intestate stood bound in a statute staple to I. S. and Greenes reply thereunto that there were Indentures of defeasance no covenant whereof was broken and the resolution of the Judges that the said matter in the replication was good to avoid the defendants plea. All this I say and the resolution of the Judges of the Common Pleas in that case and in the case betweene Pemberton and Barram as also in the Kings Bench by Popham and the rest of the Judges that executors must satisfie judgements before statutes and statutes before obligations had beene idle and savouring of grosse ignorance if no execution at all could be had against the executors of him bound in a statute and then should Greene have demurred upon the plea of Harrison and needed not to have pleaded that other matter but none of the Judges or Serjeants ever conceited any such matter that which there was replyed viz. that the statute was not forfeited is here to bee remembred as good matter both against statutes and recognizances and that whether the recognizance have a defeasance or a condition not broken so that the recognizance is not forfeited In none of these cases is the executor hindred froÌ„ payment of debts by specialty nor can he be justified or excused if by colourt hereof he refuse so to do and indeed else might creditors be exceedingly defrauded by recognizances for the peace and of good behaviour c. and so by statutes for performing covenants touching the enjoying of lands if these should keepe off the payment of debts and yet themselves perhaps never bee forfeited nor the summes become payable Of Debts by specialty NOw come wee to debts due by specialty viz. bond or bill of which nature the greatest number of debts are let us then see what course the executor must or may hold for satisfaction of these admitting that the testator stood not indebted by any record or that no forfeiture is of any such debt or that there be goods in the executors hands above the amount of such debts by record This I say dato then according to the rule proximus quisque sibi the executor may first satisfie himselfe of such debts as the testator by specialty owed him for such debts are not released by the creditors taking upon him to be executor to the debtor though on the other side if the creditor make his debtor executor this is a release of the debt Although it be given out or commonly spoken in the generall that an executor may first pay himselfe yet is it to be understood with this caution or condition viz. that the debt to him be of equall height or dignity with the debts to others according to the rule inaequali jure melior est conditio possidentis for if his testator were indebted to other men by any statute judgement or recognizance and to him whom he maketh executor only by bond or other specialty then may he not first pay himselfe that is by paying of himselfe leave them unpaid whose debts are of a higher nature but if there bee sufficient for satisfaction both to them and himselfe then is it not materiall which be first paid Now touching the debts to other men the executor hath power to give preferment in paiment to whom he will so that if the testator left but an hundred pounds being indebted to A an hundred pounds and to B an hundred pounds by severall obligations the executor hath power to pay B. his whole debt and to leave A altogether unpaid any part of his debt so as he have not commensed any suit before paiment to B. But yet herein this difference is to be taken and observed by executors that if the time of paiment upon the bond of B were not come at the time of the testators death then may not the executors before the money to B become payable pay him and leave A unpaid whose money was presently due Yet if A forbeare to demand or sue for his debt till the debt of B become also payable then is it at the will of the executor to pay whether of them he will so as the other may lose his whole debt if the goods will not suffice to pay both What if A have only by word demanded his debt and not by suit before the debt to B become payable whether doth that hinder that the executor may not now when the money to B is also payable pay him and leave A unpaid And hereunto S. Germ. answereth negatively making this verball demand to be idle and of no value yea he addeth that if A have commenced suit before the debt to B become payable yet if the executor can delay the suit till the debt of B become payable so that A can get no judgement before that time and before B hath commenced suit upon his band then may the executor confesse his action and so pay his debt leaving A unpaid But of this I make some doubt for that I finde in 9 of King Ed. the 4. some admittance that if A having a Tallie patent or other warrant from the King for receipt of money of or from a customer or receiver where others had like warrants before him but A maketh the first demand now must the officer first pay him or else himselfe shall become debtor to him if he first pay others whose demands were after made though they had warrants before A. Likewise there is as to me it seemes some admittance in the same book that the very demand made by a creditor of his debt from an executor who hath then assets in his hands doth intitle the creditor to recover damages against the Executor out of his owne goods which if it so bee then doth even that verbâ—ll demand lay some tye or obligation upon the executor for payment But hereabout I lay downe nothing peremptorily We partly may discerne by the premises how the executor is to guide himselfe in case where there be divers debts by specialty all due and payable at the testators death before any sute commensed for any of them for in that case cleerely the first verball demand gives not any precedence all being due and so standing in equall degree And this is implyed in many Bookes making the commencement of the sute onely that which intitles to priority of payment or at least restraines the election of the executor Yet admit that one creditor first doth beginne suit if others also after sue before hee bee payd or have judgement now cannot the executor pay him first who first commensed sute but hee who first hath judgement must first be satisfyed And the executor may herein yeeld help to one before the other viz. by essoignes emplances or dilatory pleas
to the one and by quick confession of the others action for he is not bound against his will to stand out in sute and expend costs where the debt is cleere nor is this coviâ—e but lawfull discretion which conscience will also approve some good consideration inducing Nay after sute commensed yet untill the executor have notice thereof he may pay any other creditor and then plead that he hath fully administred before notice Nor is the Sherifes returne of summons or distres sufficient cause of notice for the summons might perhaps bee upon his land but if it were to his person it is notice sufficient and then to save himselfe hee must say that he was not summoned till such a day before which hee had fully administred yet doubtlesse the executor may be arrested at the creditors sute in some sort which yet shall bee no sufficient notice of this debt As for the purpose if hee bee sued by Latitat out of the Kings bench this supposing a trespas gives no notice of a debt so also of a Subpaena out of the Exchequer but the originall returnable in the common plees expresseth the debt and so in some sort doe the proces thereupon And therefore it seemes by some bookes that if it bee laid in the same County where the executor dwels he must take notice of it at his owne perill But this I take not to bee Law nor is there any great opinion that way and although to make it more cleere the executor in King Henry the fourth his time estranging himselfe from notice of the sute before payment to others did alledge that the action was layed in a forren Country that is no great proofe that if his abode had beene in the County where the action was brought hee must have taken notice but thus it was cleerer and a little surplusage hurts not Now betweene a debt by obligation and a debt for rent or dammages upon a Covenant broken I conceave no difference nor any priority or precedency but it is as the executors discretion to pay first which he will as if all were by bond So also of rents behinde and unpaid as I conceave but touching them principally intending rents upon leases for yeeres divers considerations are to be had and some distinctions to be made as first betweene rent behind at the time of the testators death of which that before said is to bee understood and that which groweth behind after next betweene sute for the rent by action of debt and by distres and avoury As to the first difference if the rent grew due since the testators death then is it not accounted in Law the testators debt for onely so much is in Law accounted assets to the executor as the proffits of the lease amounted to over and above the rent so as for that rent so behind the executor himselfe stands debtor as hath beene resolved and therefore hee is suable in the debet and detinet whereas for rent behinde in the testators life and all other the debts of his testator hee must bee sued in the detinet onely Hence it must follow as it seemes that an executor sued for debt upon bond or bill cannot except in some speciall cases pleade a payment or recovery of rent growen due since his testators death though of rent behind at the time of his death it bee otherwise And yet heere againe another difference or distinction is to bee taken viz. where the proffits of the lease exceede the rent and where the rent is greater then the yeerely value of the proffits for even there as else where is shewed the executor if hee have assets is tyed to the holding of the lease and payment of the rent and consequently doth so much of that rent as exceedes the yeerely profit stand in equall degree the testators debt with other debts by specialty and yet againe to reconsider this point what if the debts of the testator by specialtie payable presently at his death or before the time that any rent can grow due upon this Lease shall amount to the full value of the testators goods may not then the Executor though hee doe not pay those debts before the rent day for that would make the case cleere waive the terme for if he may then happilie iâ— he doe not so but shall by payment of any of this rent want goods to pay any part of the debts by specialtie it may lie upon himselfe and his owne goods as happening by his owne default But on the one side it may bee said that hee could not waive it so long as hee had assets because thereby hee stood equallie liable to pay that debt being once due as the other debts by specialty On the other side it may be said that though the debts for rent and upon bond shall bee admitted to bee in nature equall yet the case being put of rent not due at the time of the testators death it was not then a debt nor duty whereas a Bond makes a present debt and duty though not presently payable the day of payment being not yet come so as this latter is discharged by a release of debts or duties and so is not the former So to leave that point unresolved let us next see whether in some case though the rent exceede not the yeerely value of the Land yet even that payable after the death of the testator may not stand in most part if not wholie upon the testators score as his debt as well as if it had beene payable before his death Posito then that the whole or halfe yeeres rent is payable at the annunciation of our Lady and that the testator dieth two or three daies or some like short time before that feast now certainlie should the Law bee unreasonable if it should lay this debt upon the executors shoulders in respect of those few winter daies proffits which he tooke But surely since the taking of the proffits induceth the Law to lay the rent upon the Executor as his owne debt therefore as where the Executor had the proffits for the whole yeere or halfe yeere except some few daies incurred in the testators life time those few daies will bee unregarded according to the rule De minimis non curat lex the whole rent shall lie upon the Executor as his owne debt So on the contrary part where the whole yeere or halfe yeers proffit except some few daies incurred after the testators death the rent becomming payable so instantlie after the testators death must in reason lie wholy upon the testators estate as to me it seemes What if to this I adde that the testators cattell wherewith the ground was stocked doe depasture and devoure the proffits all the time after the testators death till the day of payment of the rents Nay if the rent were payable at Mich. and the Anâ—unc and the testator dieth a few daies after Mich. the rent being of or neere the value of
the Land it will then bee haâ—d that the Executor shall for this winter proffit pay the rent out of his owne purse especiallie if the whole yeeres rent bee payable at that one day as in some cases it is or if the whole yeeres proffits were taken in the summer as in case of a lease of tithes it is so also of medow grounds usually drowned in the winter So if the lease bee then to end not having a summer halfe yeere to succeede and make amends for the winter or if the winter halfe yeere bee the latter halfe the lease beginning at Lady day so that there is but a summer for each winter following and not any for the winter passed Of like consideration with these is the case of a lease of woods for a rent which being fellable but once in eight or nyne yeeres now if the lessee having made the last sale and felling before his death the Law should cast the rent upon the Executors owne estate for the time future it should lay losse upon him which is against reason and contrary to the nature and disposition of the Law even in this particular As appeares by this that shee enables an Executor to pay himselfe before any debt of equall nature so as shee more tenders an Executors indempnity then any other Creditors therefore I thinke that with and upon the differences above shewed even rent growen due after the testators death may in some cases bee the testators debt payable equally with debts by bond But here I conceive that if the executor were in such case of destitution of assets as might justifie his waiving of a lease over-rented hee then may waive these termes residue because for the future the profits will come short of answering the rent though at the first and so in the totall the profits did exceed the rent And if for want of waiving where he might this rent fall upon him the paiment thereof would be no excuse against another creditor nor as to him be a good administration for Ignorantia juris non excusat This is pertinent to our present consideration which debt may with safety be paid leaving another unpaid and the hazard of executors by ignorance of the Law hath been a principall motive to my writing these Discourses in English Hitherto we have only considered as I think of rents as they be recoverable by action of debt Now let us see if there may not be somewhat different considerations touching distraining for rent and so comming to recover it by avowrie Put wee then the case that an executor hath fully administred in payment of debts by bond and after the lessor or revertioner commeth and distraineth for arrerages of rent due in the testators life can the executor in bar of the avowrie plead fully administred as hee might have done if an action of debt had been brought for these arrerages doubtlesse I think no nothing shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease except the land come to the King upon whose possession no distresse can be taken I think therefore that the executor who paid out of his own purse to the value of this lease for to I intend the case and else could he not have fully administred as in the case was put he should I say have abated in the price and valuation of the lease as well the arrerages of rent as the rent futurely payable both being equally leviable upon the land and if he so have done he is no loser by payment of this arrerage but if trusting to the power of an executor and to the plea of fully administred hee did not so but disbursed in respect of the lease to the full value without such abatement he must beare the losse of his owne ignorance He might also another way have helped himselfe viz. by payment of that arrerage leaving other debts by specialty unpaid And what if suits were presently commensed upon the testators death before hee could make payment of the rent behind whether might the executor then plead this debt for rent as hee might a debt by judgement or statute and surely me thinkes it probable that he might because it is a debt from which hee cannot be freed by payment of the other debts sued for by specialtie If the revertioner would also commence suit before judgement had for the creditor by specialty then might the executor helpe himselfe by confessing his action first but this perhaps the revertioner would not conceive safe for him since that way the others might get judgement before him and so he might lose both his suit and his debt wheras holding himselfe to the course of distres the lease continuing he hath land at the stake for his debt What if he distraine and avow may not now 〈◊〉 executor pay him or at least confesse his â—â—tion or avowry so as he first having judgement may first be satisfied Surely after suite commenced I see not how the creditors by bond can so be prevented at least without judgement had for the rent yea though such a judgement be had yet because the judgment in that case is not that hee shall recover the summe due for rent but only that he shal have a returne to the pound of the cattell distrained for the rent it is questionable whether the paiment thereupon of the rent shall prevent the judgements after had in the suits upon bonds But I thinke it shall because although it bee not an expresse recovery of the rent yet is it such a judgement compulsary for the same as makes the payment inevitable and of necessitie And where before we have made the question only between the said rent-debt and the debt by obligation let us now put the case between the rent-debt and the debt by statute or judgement If then the lessor after death of the lessee distraine for the rent behind part of the testators cattell and after there comes a writ of execution upon a judgement or statute of the testators whether shall these beasts in the pound for rent be delivered in executioÌ„ or not admitting that without them there be not goods sufficient for satisfaction of the judgement or statute And surely I thinke they cannot be delivered in execution First for that they are in the custody of the law as in String-fellowes case though there the Kings preroga-time overtopped that point yea so I thinke though they be replevied for that they are to be returned to the pound if judgement passe for the avowant to which purpose securitie is given so as they are but in tâ—e case of a prisoner bailed who still is in some sort in custodie Secondly for that this rent incident to and descendible with the reversion breeds a debt of a reall nature and so of more dignity and worth than debts personall Thirdly for that the land let as in a sort debtor stands chargeable with this distres
the second point it may have these two parts 1. When the executor is able to give such assent to a legacy And 2. when he may do it with safety As for the first he is able before probat of the will to assent unto the execution of a legacy as elsewhere is shewed and that although he be not of full age of 21 yeares but if he be under 17 yeares so as he is not able to take upon him the office of an executor and therefore administration is during that time to be committed to some other Here his assent is not of force or effectuall as wee find in Princes case to have been held in the case of Pigot and Gascoine As for the second part till all debts be payd the executor may not safely consent that the legatee enter into the lease or chattell devised no more then he may pay money bequeathed if there be not sufficient also to pay all debts Of these things more is said elsewhere Yet because the reader or he that desires direction in these points will look for them under this title I thought not good here to be altogether silent touching them As for the third point viz. Whether the assent of one executor where there be many be sufficient I see not how to doubt since any one executor may give away any goods of the testators or release any debts due to him therfore much more assent which is no more or greater work in effect then an atturnment of one lessee upon a grant of a reversion And if there want to pay debts he only who assented shall answer for it of his owne goods and not his companions But if this executor be either under the age of 17 yeares or under coverture viz. a woman maried such is not able to give a good assent to binde the others no nor themselves for then thereby the Infant might draw a debt upon himselfe and the wife upon her husband by assenting to or paying of a legacy there not being sufficient goods to pay all debts But the husbands assent is sufficient where the wife is executor for his acts whom she hath chosen to be her head may prejudice as well her as himselfe yea though she were within age yet he being of full age his assent will stand good But if he or another executor in his own right be above 17 yeares of age and under 21 I doubt whether now his assent will be sufficient at least except the case be put that there be assets sufficient which perhaps there may be materiall though not in the other See more hereof after in the title of women covert and Infants executors As to the fourth point first there may be an assent election implyed as well as expresse for if in the devise or bequest the legatee be appointed to do some act as in respect of the legacy and the excecutor doth accept the performance thereof this amounteth to an assent So if the devise be to an executor for the education of some children which he doth accordingly educate this makes an election to have the thing by way of legacy and not as executor as appeares by the case of Paramoor and Yardly Plowd 543. So if an horse be bequeathed and one offering to buy him of the executor himselfe he directeth him to go and buy the horse of the legatee or if the executor himselfe offer money to the legatee for the horse this implyeth an assent that it should be the legatees by the will and so was it held in the case between Low and Carter where the devisee of a terme did grant it to the executor and this acceptance of a grant from him was held to imply the executors assent that it should be his to grant But I see not well how that should be law which in the latter part of the Lo. Dyer is found viz. where a terme was devised to I. S. and he was made executor and after the death of the testator entred and occupied the lands a whole yeare without proving the Will that this was an election to have it as devisee and not as executor For first he had good right to the terme as executor before probat and so might clearly in that right have taken the profits although it had not bin devised or bequeathed to him and that before any will proved Secondly he could not by right have it as legatee without assent of himself or some other as executor Therefore this general accepation can determine no election as elsewhere is held As for disassent or disablement to assent As if the executor do once declare his assent that the legatee shall have his legacy he may then enter into it or take it notwithstanding the executors countermand or revocation of his assent after So on the other side I think if he do fully and expresly deny that the legacy shall take effect he cannot after make a good assent thereunto for that election once made must stand peremptory be it refusall to assent or assent Yet quae of this for that the refusall to assent may be checked by sentence or decree in the Spiritual Court or Court of Equity and so an assent be inforced But if the power of assenting be legally lost by the meanes aforesaid viz. disabled I see not how any legall interest can be transferred by that compelled assent howsoever decreed And what is said of a legacy bequeathed to another the same may be understood in case where the bequest is to the executor himselfe and he makes his election to have it as legatee or as executor But if where an Horse is bequeathed to A the executor after the testators death doth ride the horse or use him in the Coach or in the Plough I do not take this to be any such disagreement to the execution of the legacy as that the executor cannot after assent to the legatees having thereof no more though it be somewhat more then where a drinking-cup is bequeathed and the executor after the testators death doth use it to drinke in nay if a lease of land be bequeathed to A and the executor continueth the depasturing of the testators therein yet is not this any disagreement to the execution of the legacie but if this lease-lease-land were let out by the testator from yeare to yeare and the executor dischargeth the tenant and taketh it into his hands at the yeares end this I conceive to be a dis-assent to the legacie and so also perhaps may his taking or distraining for any rent thereupon due after the testators death yet am I not resolute that the dis-assent is so peremptory and unchangeable as the assent remembring the case in King Henry the eight his time where a terme being granted by a lessee conditionally so as the assent of the lessor could be had by such a day though the lessors assent were at one time denied yet
effect And it hath beene resolved that this assent shall bee effectuall as well to all the remainders as to the first estate and so according to former resolutions it was admitted in Hamons Case that Alexander his assent to take as legatee sufficed if the bequest had beene good for the remainders to Ralfe and others And the reason of this doubtles is because heere the particular estate and the remainder are all but one estate in Law they make but one degree in a Writ of Entre nor shall have but one yeere and a day to enter for mortmaine And an atturnement to the grantee of a rent or reversion for life with remainder over doth enure also to the remainder which being an assent hath much affinity to that of the Executor each tending to perfect the grant of another man Now then whereas it was urged in Hammoâ—ds Case that the state limitted to Ralâ—e should take effect not as a remainder but as a new estate to commence futurely viz. when Alexander should bee dead without issue male if it should bee admitted to bee so then could not the assent of the first state to Alexander have enured to this since to A. remainder it worketh as being one estate with the first which reason must faile thother way This difference betweene a remainder and new estate future brings to my minde the case of a rent by way of new Creation granted by C. out of land to A. for life or in taile with remainder to B. in like manner where it hath probably beene held although this limitation to B. cannot bee good by way of remainder because C. had no estate in the rent remaining with him when hee made the grant to A. yet should it be good by way of new grant and creation to commence futurely But this doubtles cannot so be but with a difference for if the grant were by indenture betweene C. on th one part and A. only on the other part now B. being no party to the deed can take nothing by it except by way of remainder but if hee were party to the indenture or if the grant were by deed poll to which all men are alike parties then it happily may enure as a future grant to B. This not impertinent Now as the executors assent to one cannot enure to another though of the same thing except by way of remainder so neither can it any way where the things are not the same except in very speciall cases as if a termor bequeath a rent to A and the land it selfe to B the executors assent that A should have the rent is no assent that B should have the land yet I think the assent that B should have the land doth imply the assent that A should have the rent 1. For that the restraint imposed by the law against the passing of a chattell by a will without the executors assent being out of respect to the payment of the testators debts now if the land shall passe to B it is no more availeable to the testators debts that it passe discharged of the rent then charged 2. Since the gift and bequest was of the land charged with the rent therefore if this bequest shall take effect it shall carry the land according to the testators intent viz. with this charge upon it for what else doth the executor in this but assent that the will of the testator herein do stand and take effect and consequently B must take the terme according to the will and not in any different or contrary manner Next we are to consider of the manner of assents by executors which hath some affinity with the fourth point But here we shall consider only of assents conditionall now to this purpose we will cast our eyes upon two sorts of conditions viz. precedent and subsequent As for â—he former an executor may to a legatee absolutely given assent upon a condition precedent as thus I am content that if you can get and bring in to me such a bond wherein the testator stood bound unto I. S. that then you enter upon the terme or take the corne or cattell to you bequeathed So of other like conditions which may precede the assent as if you can get the assent of my coexecutor or if you will pay the arrerages of rent to the lessor behind at the testators death or if you will pay the wages already due to the servants attending about the cattell or corne to you bequeathed In this case if the condition be not performed there is no assent and therefore the conditioning in this manner is good But if it be upon a condition subsequent as thus I do agree that you shall have the thing bequeathed to you provided that you shall pay so much yearly to me or to such a creditor of the testator now the legatee entring into or taking the thing bequeathed shall not lose it againe by failing to performe the condition afterwards for the executor by his assent cannot make that legacy conditionall which the testator gave absolutely no more then he can make that bequest to be absolute which the testator gave conditionally except by a release made of the condition As in other things so in this the executors assent is like to the atturnement of a lessee which cannot be upon a condition subsequent where the grant is absolute or without condition though yet he may to his atturnement prefix a condition precedent In the eighth place we are touching the bequest of leases or chattels reall to consider what manner of interest one to whom a remainder of a terme after the death of another is limited hath and whether he may grant the same or dispose thereof during the life of the first And as to that it is cleare that he hath but a possibility of remainder for that possibly the whole terme may be spent in the life of the first to whom during his or her life it is bequeathed now a meere possibility is not grantable Therefore was it resolved in the late Queenes time where hee in remainder granted or sould his state or interest to another during the time of the first that this grant was utterly void because a possibility cannot be granted but whereas some opinion in that case was delivered that this possibility could not be released no more then granted it hath since bin resolved that he in the remainder by his deed of grant or release to the devisee for life may make his estate which before was determinable by his death to be now absolute so as it shall continue to his executors administrators and assignes after his death during the whole terme It may be that what was conceived in the said case of Fulsey negatively of the validity of a release by him in the remainder might be meant or perhaps expressed of a release to him in the reversion but surely me thinks though he could not surrender yet his release or defeasance to him
another point which made an end of the case all agreed Yet the better opinion was as I finde in my report that a lease would passe by such words in a will though not in a deed or grant by word otherwise made for that legacies are demandable in the Spirituall Court where bona catalla are taken for all one See also the state of Marlbr giving an action to the successor ad repetenda bona predecess Yet an eject custod hath been maintained thereupon so also upon the stat for executors de bonis asportatis in vita testator hath it beene resolved and where administration is granted it is only omnium bonorum without speaking of chattels yet hath the administrator interest in leases as well as moveables On the other side the stat de prerog reg mentioning only forfeiture de catallis is cleerely extended to moveables so also in the writ of assize de catallis quae in eo capta fuerint and in the writ of execution upon a stat there is only the word catalla and not bona and in the case reported by Kelway temp Henry the 7 th it seems bona catalla were taken for synonyma or all one It doth not appeare that these stat and writs were alleadged or considered of temp Ed. 6. but in Portmans case the most of them were If one will that his wife or any other shall have or hold or enjoy the moiety of his lease with his executor This implyeth not that the executor have the other moity as a legacy also but otherwise as the law casts it upon him no more then where the moiety of fee-simple land is devised to the younger sonne this shall not make the elder sonne to have the other moiety otherwise then by discent as betweene Low and Charter was conceived But there being a Proviso in the wives bequest that if she married from the house then c. Popham cap. Justice held that if she married at all this was a marrying from the house for she was no longer widdow of that house though she married with one of that kindred and who had no other house but would dwell in the bequeathed CAP. XX. Of the Executor of an Executor I Should bee taxed of omission if I should not shew whether the things fore-spoken of Executors immediate extend also to the mediate or more remote Executors Assuredly were I not by the books otherwise informed I should thinke it somewhat strange that the mediate Executor in the fourth fift or further degree should not by the rules of the common Law stand in like plight Executor to the first Testator as the first and immediate Executor aswellas the heire and assignee in the third or thirteenth degree is capable of all advantages in like sort as the first and immediate heire and assignee And indeed wee finde both in the time of Edward the 2. and Edward the 3. Execution sued out upon a judgement and Statute by an Executor of an Executor and why hee might not aswell maintaine an action of debt c. I see not But I must confesse I finde both books to the contrary before any Statute made in the point and after an act of parliament to enable them to bring actions and to make them subject to actions yet the Statute speakes nothing of conferring upon them the Testators goods Now if they had title to them before that Statute and without the helpe of that Statute it is strange if they should not bee suable for debts But since that Statute and at this day where by a will a speciall trust is recommended to an Executor as to sâ—ll land c. This not performed in his life time shall not be performable by his Executor contrariwise of an interest as to take the profits of lands for certaine yeeres towards payment of debts and legacies and where the stat temp H. 8. gives remedy to Executors for recovery of rents of inheritance behind in the Testators life I doubt not but executors of executors are within the equity as well as within the Stat. 9. Ed. 3. cap. 3. that the executor who appeares at the grand distres shall answer alone Yet the statute Westm 2. cap. 23. for executors was taken not to extend to executors of executors Quod non est lex So as now in all cases except of speciall trust or authority without the office of executorship The executor of an executor how farre soever in degree remote stands as to the points both of being having and doing in the same state and plight as the first and immediate executor CAP. XXI Touching Administrators OF these also as standing in much affinity with executors it may bee by some expected that I should have treated But first my excuse is that these of executors onely having growne to so great a bulke above expectation I was unwilling to inlarge it further Secondly that which in the points of having and doing is before set forth and shewed touching executors may bee applied to and understood of administrator sthough not what is spoken of being and unbeing or revocation of executorships and other circumstantiall points Lastly I may perhaps if these finde good acceptance ad ere long that which appertaineth to Administrators distinguished from Executors or wherein they stand in different state CAP. XXII Considerations in conscience touching payment of Debts Legacies and the preferring or respect of persons TO the advertisement what course executors are to hold in their payments I thought good to adde this in foro conscientiae That when as it shall stand in the executors will and election to pay whom he will and as he will in respect of equality in the dignity and degree of the debts all being for the purpose by specialty and none of record and yet he hath not wherewith to pay or satisfie all Here he may have three wayes or courses in his eye First where there is equality in the honesty and conscience of the debts there except in the ability of the paties to beare losse the disproportion may otherwise occasion me thinks it should be most honest and just to pay every one proportionably and to let the losse of every one to be equall and the justnesse of this is taught by the law which gives the audita querela for equall contribution in bearing of losse by them who stand in equall degree so of legacies The poverty and inability of some and the plenty of others may in foro conscientiae justifie the paying more to one and suffering him to lose lesse if any thing then another For as the widowes mite was a greater gift so a greater losse then more out of abundance Where charity findes or may finde place or neernesse to place of giving it may find greater motives of preserving from losse So of legacies The nature of the debts and so sometime of legacies may be so different as
29. Eli. Inter Brooker Carter in Ba. com 9. Ed. 4. 33. The Booke calls him Cardinall of Canterbury 9. Ed. 4. 47. Selling Land as Executor is Admin Dyeâ— in Case of Greisbrooke Foxe Plow com 280. b. Pas 7. Eliz 36. Hâ—n 6. f. 7. 8. Micâ— 27. 28. Eliz 〈◊〉 Case in com 〈…〉 A. being Executor did adminâ—ster and yet would not prove the Will B. tooke Administration and being sued for debt did pleade the matter supra and held a good plea and was found for him before â—ust 〈◊〉 ad Oxâ—n in aestat 1. Carâ—l reg 36. Hen. 6. 7. 20 〈◊〉 4 17. and 21. â— 4 5. 21. Ed. 4. 5. 21. H. 6. 19. 20. 33. H. 6. 31. 8. 1. Eliz. Dy. 166. 13. Ed. 3. Exâ—c 91. 3. 4. Ma. Dy. 135 26. H. 8. 7. 8. 20. H. 7. Kelw. 63. 21. Ed. 4. 5. 20. H 7 f. 5. a. 9. Ed. 4. 12. 13. 33. H. 6. 31. 4. Cooke lib 5. f. 2â— Cont. 18. E. 2. Bre. 8â—7 22. Ed. 3. 19. 15. Ed. 3. Exec. 8. 41. Ed. 3. fol. 〈◊〉 21. Ed. 4. fâ—l 24. 42. Eliz. Co. 9. f. 36 37. 4 5. 〈◊〉 Ma. Dy. â— 69◠〈…〉 2â— â— â— 4. 23. 24. 33. Hen 6. 38. a. 〈◊〉 9. 37. 6. 32. Hen. â— â—25 27. Hen. 8. 11. 〈◊〉 curâ—am 9. Ed. 4. 33. Co. 9. fol. 36. 2. R. 3. Fitzh 4. Co. lib. 9. fol. 43. 11. H. 7. 12. Flow. Coâ— 279. 1 Cor. 4. 2. Acts 20. 27. Vide â—ol proxim If Bona Notabâ—â—â— both in Canterb. and Yorke Canon 92 93. â—1 Eliz. Goods considerable or 〈…〉 Hil. 37. Eliz. M. Comâ— Da. Vide 13. 14. Eliz. Dy. 305. 22. Eliz. 9. Ed. 4. 47 22. Ed. 4. 50. 22. H. 6. 52. Plow Com. 282. 44. Ed. 3. 32. 19. Ass p. 2. Plow Com. 281. a. 283. 18. H. 6. 22. 2. 9. E. 4. 33. 47. Not to make good a Release made before Co. lib. 5. 28. 36. H. 6. 8. 2. Ma. Dy. 110. See also 31. E. 3. cap. 11. An Administr shall account as an Executor Fitzh Ex. 91. and 837. viz. 18. E. 2. tit Briefe 48. E. 3. 14. 15. Of a duty resting in account it is said the Legatee shall have remedy by account in the Spirit Court 81. Ed. 4. f. 3. Moyle 4. H. 7. 15. per Wood. 9. Ed. 4. 47. Dost Stu. 78. b 21. Ed 4. 22. Plow Com. 544. 4. H. 7. 15. Kelw. râ—p 64. a. Temp. E. 1. Assise 〈…〉 37. Ass p. 〈◊〉 4. E. 3. Ass 166. Brâ— Chaâ— 15. â—9 E. 3. 37. So Manwood if granted for life it is but a chattell Plow coâ— 524. 〈…〉 88. Reg. orig f. 102. There is mentione that the prisoner was to have a 190. l. for his ransome Bro. no. ca. 295. tis Property 38 1. H. 6. cap 5. 10. E. 4. 14. 15. Come of wilde ones 22. H. 7. Relw. rep f. 88. 118. co lib. 11. fo 50. 18. H. 8. 2. 10 E. 4. 14. 15. 18. E. 4. 8. So of young Hawkes in the nest It is felony to steale these Ergo. they be goods So an Hunters horne a Falkoners lewer Hares Deere Fesants Partridges wilde Duckes c. are good â—eate Fo. 142. Hen. 8. fol. 3. Rootes of Carrots Parsnips Land sold wherâ—n is ripe Corne For he was Tenant for life in effect The Wife also shall have convenient apparell 33. H. 6. 31. 2. Eliz. Dy. Co lib. 11. f 48. Of Houses or things about the House 42. E. 3. 6. â—1 H. 7. f. 26. 42. F. 3. f 6. H. 37. Fliz. Austins case 〈◊〉 lib. 4. f. 63. 64 Things in Gaâ—dens 〈…〉 2. 36. H. 6. 2â— 18. E. 3. 4. â— H. 7. 15. Quae. If sole use that way make a difference or not See Stat. 〈◊〉 H. 8. cap. 17. Remedy for Rents of Inheritance or for life A Church of the Testators Inher become voyd in his life comes to the Executor as a thing in action but is not Assets for not vendible 11. H. 4. 32. 45. E. 3. 3. 〈◊〉 na br 59. 4. E. â— c. 7. And the like given to Executors of Executors pâ—r 〈◊〉 25. E. 3. c. 5. 17. E. 3. Fit 106 cap. 21. meant 〈…〉 21. H. 6. 1. but 〈…〉 contra 21. H 8. cap 19. 4 E. 3. The B. of Coâ—â—nt â— and Safes case M. 32. 33 Eliz. in com ba. So of Ravishment Dl. gard 7. H. 4. â— 7. H. 4. 6. Erect 〈◊〉 Tild Do â—lauso fracto meerely it lyeth not 11. H. â— 3. This Tâ—riaÌ„ Iust did very judiciâ—â—â—sly urge in Sâ—les case supra At least me thinkes Action upon the case here and before should be maintaineable 3. H. 6. 3. Litleton fo 42. a. So held in Sales case of dammages in Qua. impe recovered conte of the presentment Releasing 13. Ed. 3. 〈◊〉 9â— Error 1â— H. 4. 65. 46. E. 23. Yet upon a verdict in Qua. imp the Wife not the Executor of Husband did seise 9. H. 6. c. 4. Or if a strange usurpe in his life and he dying his Executor recovers in a Qua. imp as by Sale was done infra Mich. 32. and 33. Eliz. So held in Sales Case in com ba. Vende◠〈◊〉 pâ—test emerat ipse prius 22. H. 8. 〈◊〉 Villenage 46. If he dye how shall this be Assets in the heire 3. H. 63. and so 2. Hen. 4. 21. If by Feoffment per Markam cap. Iâ—st contr Rickâ—ill See 9. El. Dy. 264 9. H. D. 264. 14. H. D. 31â— Note Diff. â—1 Hen. 7. Plowd Com. 11. H. 6 35. per Babington 24. E. 3. f. 35. 32. H. 6. 34. â—itl tit villenage 41. 42. 10. E. 4. fo 1. Yet 39 H. 6. f. 15 A release of all actions by an Executor extincts actions as Executor But Frowicke iâ— against it in 20. H. 7. Kâ—l 64. See these so resolved in Plow com 525. intâ— Râ—ansby Grantham P. 20. Eliz. This may be in his name onely out of whose possession the goods were taken Co. lib. 5. fo 32. 34. H. 6. 43. Co. lib. 9. 88. b. See this also Ploâ— com 520. a. 21. Hen. 6. 30. If other goods taken among them he is excused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded 43. E. 3. 24. Brâ— 145. Makes a quae if it be locked Plow com 280. 43 Ed 3. 2. 10. Ed. 4 5. 6. Of the Deed execution first 12. H. 4. 7. Hen. 4. f. 31. See Bro. Exe. â— 24 Co. l. 3. f. 90. 91. To like purpose see more Litl f. 77. b. 2. Eliz. Dy. 281. Plow com 291. 21. Hen. 7. 4. A Are as one person therefore cannot plead severall pleas 〈◊〉 abatement 3â— H. 6. 17. 9 H. 6. f. 44. 38. E. 3. 9 Bro. Ex. 13. Brâ— Ex. 20 21. Therefore one Executor sued iâ— he plead that there is another Executor not sued must plead that he did administer 9. H. 6. 44. Bro. 13. 33. H. 6. 38. â— â— 20. 32. E. 3. quid jur 〈◊〉 5. â—3 H. 4 Aid â—86 A 9. Ed 3. cap. 3. A B But not if he