nothing it was resolved that A. should not have iâ— for their lives but for his owne onely This Case was said to come very close in reason to the Case in question for as heere the intent of the Lease was that B. and C. should bee estated for their lives and since that could not bee therefore the naming of them should bee utterly voyd and as if they had not at all beene named and their lives shall not stand as a measure for the estate of A. So in thother Case the intent of the will being that the Lease or Land leased should goe to the heires Males of the body first of Alexander and after of Raulphe since this cannot bee therefore the words and name of heires males should stand for a meere blancke and cipher and not to measure out any state to the said Alex. and Ra. and their Executors and assignes Also it was said on the defendants part that an estate for life in the judgement of Law is of so short and uncertaine continuance that if A. make a Lease to B. for his life and after makes a Lease of the same Land to C. for yeeres now shall not this latter Lease bee voyd absolutely for any part of the terme but shall stand in expectance of the death of B. and as soone as hee dyeth shall take effect immediately whereas if the Lease to B. had been for ten yeeres or any like terme then the Lease to C. should have beene voyd for so many yeeres of his terme thus it appeares that a State for life is very momentary in the judgement of Law and not reputed of any certaine continuance so much as for a day but it is otherwise of an estate tayle so as if A. having given Land to B. in tayle doth after without indenture which makes an Estoppell make a Lease to C. for xxj yeeres and then B. dyeth without issue during the terme yet shall not the Lease take effect because it was utterly voyd at the first making For an estate tayle being a state of inheritance may in the intendment and judgement of Law have continuance for ever as appeares both by the Case of Adams and Lambert where it is held within the Statute of Chaunteries which speaks of gifts to have continuance for ever Therefore a reversion upon an estate tayle is no assets nor giveth cause of receipt otherwise in all these Cases it is touching a reversion expectant upon a state for life Againe it was said by the defendants councell that an estate may bee limitted to A. and his heires during the life of B. with remainder to C. as in Chudlies Case was resolved but if Land bee given to A. and his heires so long as B. shall have heires of his body or heires males with remainder over to C. this remainder is utterly voyd So as there is in the judgement of Law a great difference betweene the largenes and continuance of an estate tayle and of an estate for life And if which is worth the observing a feâ— simple cannot afford a remainder to bee drawne out of it after such a gift to one and his heires during the continuance of an estate tayle or of the measure thereof much lesse can a terme yield such large thongs to bee cut out of it as a remainder after an estate to one so long as hee shall have heires of his body or heires Males which is all one And in this case the remainder was held voyd by Baldwin and Shelley though Engl field were of contrary opinion as the Lord Dyer sheweth Further it was said that if such a conveyance by will should stand good it would raise a perpetuity not to bee cut off by any recovery But whereas the case of Hammon hath beene related before so by way of admittance it was argued as a gift and bequest to Al. Ham. and the heires Males of his body with remainder in like manner to Ralfe The truth of the case was that the words of the will were onely to Alexander and his heires Males not speaking of his body and so to Ralfe which as was urged by the defendants counsell made the Case stronger against the plantifes for admit that the former way Alexander should have had but a state determinable upon the continuance of his issue Males yet here not so Since the reason why in Willes such a devise being made the Law should supply the words of the body is onely to make an estate tayle to the issues Male according to the Testators intent Now in this case of a terme for yeares so bequeathed no estate tayle could possibly bee though these words had beene in the will and therefore the motive to the Law fayling no such supply will bee made by the Law since it would bee to no purpose consequently here was neither state tayle nor issues or heires Males of the body on whose continuance this state of Alex. should bee determinable Therefore it was an absolute and totall bequest of the terme to Alexander for ever viz. so long as the Terme should continue for as a bequest to one for ever is asmuch as a bequest to him and his heires so a bequest to one and his heires is as much as if it had beene to him for ever And this Case after sixe arguments on each side at the Barre if I much mistake not was upon argument by the Barons adjudged for the defendant by the Lord chiefe Baron Tanfeild and M r. Baron Bromley M r. Baron Denham who onely heard as I take it one argument on each side made of purpose in respect of his comming into his place after the former arguments being of the contrary opinion and the judgement proceeded upon the point formerly touched that as this case was the state of Alexander did not end by his death and remaine to the Executors of Ralfe Other points were stirred which will bee touched upon other divisions after in this Chapter It will be observed that I doe more fully expresse reasons and points inforced on the defendants part then on the plaintifes whereof let these two reasons bee accepted First That I better could relate that then the other being the first who argued for the defendant and hearing little of that which was by others said on either side after nor hearing the Courts Nec ad hoc conductus nec pedibus fortis Secondly the labour did lie on the defendants part to prove that this Case differed from the common case of devise to one for life with remainder to another Wee are now come to the sixt point viz. that where House or Land held by lease or the proffits thereof or the lease or terme it selfe which in a Will makes no difference is bequeathed to A. for life or for some part of the terme with the remainder to B. and the Executor assenteth that A. shall enjoy his bequest whether this shall enure to B. also since without the Executors assent no legacy can take
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
as I conceive ability to sue the debtor in his owne name but in our law it is otherwise the suit must be in the executors name for a debt or thing in action cannot be assigned except by or to the King and only at the common law is the debt recoverable but the Spirituall Court may force the executor to sue or let his name be used in the suit for and by the legatee If one bequeath all his moveables debts due to him are not bequeathed nor corne nor fruit growing on the ground nor stone nor timber prepared for building as the Canonists and Civilians hold On the other side if one bequeath the moiety of all his goods the legatee shall have only the moiety of that which remaines after debts payed for that only is to be accounted the testators which he hath ultraes alienum By a bequest of all utensils or household-stuff plate nor jewels are not given If one bequeath to his wife all her apparell she shall not have as some Civilians say her ornaments of gold or silver by which is meant as I take it chaines jewels bracelets rings c. but others are of contrary opinion except they be such things as are not lawfull for her to weare If a Bed be given by a will Venit ornamentum ejus saith the Civilian that is the furniture thereof passeth viz. not only the bed bedsteed bedcloaths but also the curtains and valents as I take it But I think that by gift of a Coach by will the Coach-horses passe not yet perhaps the furniture of the Coach-horses may passe as appertenant to the Coach for so I think they shall do rather then by bequest of the Coach horses without the Coach If one bequeath to A meat drink and clothing or alimenta he shall have saith the civill law also lodging habitation and all things necessary for the maintenance of life viz. as I take it fire and washing c. If one bequeath to his daughter ten pounds a yeare for her apparreling and she demandeth none in foure yeares now shall she not after that time have the arrerages of this ten pounds by yeare for the time passed If a man bequeath one of his horses or cowes not naming which to I. S. he is to chuse which he will so it be not the best of all saith the civill law and perhaps the mention of that exception growes out of respect to the hariot which the Lord should have or the mortuary which the Parson should have A man bequeathes thirty pieces of twenty shillings to A twenty to B and ten to C to be had in such a Chest or Casket and it is found after his death that there be but thirty in all in that casket or box now each shall be abated ratably saith my summist so as A shall have fifteen B ten and C five and this stands with good reason and justice for so each hath a proportionable part And it were reasonable that it were by Parliament established for law that all both legatees and creditors should be payed in like proportion where the state will not suffice for full payment of each rather then that an executor should have power to pay one all and another nothing yet if the testator left sufficient to make good all those sixty pieces bequeathed Quae. if that which is wanting in the casket shall not be supplyed and made up for if the cases following found with the same author be good law it should seeme so to be If one saith he bequeath to I. S. that which is another mans and whereto the testator hath no right then ought his executor to buy it and give it to the legatee or else satisfie him to the full value and this not only by the civill but also by the canon law and in foro conscientiae saith my author Againe if A bequeath to B such an horse by name and after sels away that horse and dyeth now is his executor bound to answer the value thereof to B and if the testator after his sale of that horse had bought another and called him by the same name as the first now shall this later horse passe to B saith the book except it can be proved that the testator sould the former horse of purpose to revoke his will touching that bequest So againe finde I that if one having but a moity or one halfe of Green close or of a stack of corne or other chattell doth give the whole so as the words be apparant to reach to more then his moiety then must the executor buy out the others part for the legatee or give him the value but if the words be but generall so as they may be reasonably satisfied with the testators part no supply shall be made So also if one having goods in pledge bequeath them it shall be construed to extend no further then his right A bequest is made of an hundred pounds to be payed at a future time viz. divers yeares after the testators death a question is made by the Summist whether the profit of the money in the meane time shall go to the legatee or the executor and he resolves with this difference if the day were given in favour of the legatee being an infant who could not safely receive it any sooner then he shall have the profit but if the respite of payment were in favour of the executor then shall the legatee have but the bare summe without any addition of meane profits If one bequeath all his terme or goods to his executor for payment of his debts or debts and legacies it is a void bequest because it is no more then the law would say if he had sayed nothing So if it be generally to performe his will If one seised in fee simple of land bequeath it to his executor to pay debts the executor hath no state of freehold for if he should then it must be either for life which might end by his quick death before debts payed or in fee-simple which would carry away the land for ever from the heire where perhaps a few years profits might suffice to satisfie the debts yea then by the death of the executor the land should discend to his heire and not go to his executor who would be executor of the first testator If one give or grant all his goods having leases for yeares as well as moveables the leases shall not passe as was held in the time of Ed. the 6. And so also was it admitted in Portmans case for the word bona comprehendeth only moveables by the better opinion there But the point in that case was pertinent to this place viz. a bequest in a will of all the testators goods and whether thereby a lease for yeares passeth or not was divers times debated but not resolved the Judges differing in opinion in that point but in
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
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
him in service till a fit time of providing him a new Master and fit for him not to depart suddenly Now for things personall without life These are evident viz. all Householdstuffe Implements and Vtensills Money Plate Jewells Corne Pulse Hay Wood felled and severed from the ground Wares Marchandise Carts Plowes Coaches Saddles and such like moveable things More doubtfull Cases touching things personall FIrst touching things living If the Testator had any tame Pigeons or Deere or Conies or Fesants or Partridges these all aswell as Chickens shall goe to the Executors so though not tame if they were taken and kept alive in any Roome Cage or like Receptacle as Fesants and Partridges often be so fish in a Trunke as also young Pigeons though not tame being in the Dovehouse not able to flie out yet their Dammes the old ones shall goe to the Heire with the Dovehouse And if the Testator had any reclaimed Hawkes they also as Chattells Personall shall goe to the Executor because they are things commonly vendible And whereas Hounds Greyhounds and Spaniells be not so commonly bought and sold nor so anciently have beene yet are they now growne to be a Marchandize and why not for although they be for the most part but things of pleasure that hindereth not but they may be valuable as well as Instruments of Musicke both tending to delight and exhilarate the spirits A cry of Hounds hath to my sense more spirit and vivacity than any other Musicke Adde hereto that there may be some profit and advantage gotten by them both quoad adeptionem boni ademptionem mali the getting of some good food and the preserving of others as Lambes Conies Fish Pultry by killing Foxes wilde Cats and others which destroy them And wee know that money is recoverable in dammages for taking away such or a Mastiffe serving to keepe an house So of Ferrets to catch Conies c. Therefore they are valuable But it may perhaps be objected that none of these above are Cattell and therefore not replevisable consequently no property in them for when more then one living Chattell is distrained the replevin is to be by the name of Averia signifying Cattell For answer not to insist that one may have property in divers things whereof no Replevin lyeth as Corne or Hay not in Sackes nor Cartes money not shut in bagge nor box c. I further say that even the word Averia may be applyed to these for so I find it to Hens and Capons in the Booke of Entries viz. in the writ of Curia Claudenda where the Plaintiffe complaines of the Defendants not making his Mounds per quod averiaipsius A. viz. Capones galinae alia Averia ipsius A. that is whereby his Cattell viz. Capons and Hennes and other his Cattels came into the Plaintiffes House and Garden to his dammage c. And both Newport and Newdigate hold that a writ of replevin lyeth of such things though Brudenell were of contrary opinion yet he also held an action of Trespasse maintainable for taking of them and therefore admitted a valuable property in them Now come we to things without life and first to those abroad in the Fields Put the case that a man dyes in Iuly before Harvest I meane seised for life or in Fee or Taile in his owne right or his Wives or estated for yeares of Land in the right of his Wife being sowne with Corne or any manner of Graine the common saying is Quicquid plantatur solo solo cedit yet this shall goe to the Executor of the Husband and not to the Wife or Heire who shall have the Land but Hay growing viz. Grasse ready to be cut Apples Peares and other fruite upon the Trees shall goe to the Wife as also if they had beene upon a mans owne Land of Inheritance they should goe to the Heire though the Corne should goe to the Executor The reason of difference is because this later comes not meerely from the soile without the industry and manurance of man as the other doe and I take Hoppes though not sowne if planted and Saffron and Hempe because sowne to pertaine as Corne to the Executor All those yet shall passe to one to whom the Land is sold or conveyed if not excepted though never so neere reaping felling or gathering But what if the Wife had the Lease for yeares as Executor to some former Husband or other friend and the Husband after sowing dyes who then shall have the Corne Certainely the Corne shall goe to the Executor of the last Husband at least so much as is more then the yeares value of the Land or the making it up by addition of other things for the value is to be assetts for payment of debts and Legacies Put the case againe that the Husband and Wife were joynt-tenants of the Land and then the very Corne growing shall survive to her together with the Land and though the Husband sowed it yet shall it not goe to his Executor Being in consideration of things growing on the ground let us not forget to thinke of Trees sold by I. S. seised of the Inheritance of the Land to I. D. who dyeth before felling this Interest is a Chattell which shall goe to the Executor and not to the Heire of I. D. but some colour may be that these because fixed to the soyle and Freehold are reall Chattells as the Interest in Land is and not personall So also of Trees Excepted by him who selleth the Inheritance of the Land but in both cases I conceive this interest to be personall and not reall for that as it is a propriety of Chattell in the Vendee or Vendor with exception it stands in consideration severed and abstracted from the soyle or ground where the Trees grow though the Trees be not actually severed by the Axe from their mother Earth But if the Lessor for yeares or life except the Trees these continue parcell of the Freehold and Inheritance And after Corne reaped and before the Tithe set out the Inheritor of the Tithe dying I thinke the Executor and not the Heire shall have the Tithe after set out Now Let us come home to the Testators house and see in and about it some doubts what pertaines to the Heire and what to the Executor Question hath beene both of old and of late touching Coppers Leads Furnaces Fat 's for Dyers or Brewers Pales Rayles Glasse in Windowes Tables Dormants Wainscotes Doores Lockes Keyes and such like to whom these should goe whether to the Heire or Executors And in the latter end of Henry the 7. his time an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall the Heire brought an action of trespasse against him for so doing and it was adjudged for the Heire viz. that this was to goe as part of the Freehold and Inheritance to the Heire and
long before in Edward the third his time it was debated whether it were waste in a Lessee to remove or take away a Furnace or not but I finde no opinion delivered by the Judges But in the late Queenes time Justice walinesly said that the Lord Dyers opinion was that where the Furnace is not fixed to the Wall the Lessee might within his termetake it away Contrarily if it were fixed to the Wall for then it strengtheneth the house And yet notwithstanding it might be in the one case so removed by the Lessee yet is it not there as he said a Chattell personall or moveable so as it is attachable and there the case being that a Clothier being a Termer of an house had fixed a Copper to the Wall with Loomes and prickes necessary for his Occupation a Judgement being had against him the Sheriffe delivered the Copper in execution as a Chattell and after the Lessee tooke it up and it was taken from him by vertue of the Execution whereupon he brought an action of Trespasse and by all the Judges the action was mainetainable And whereas it was found by the Jury that by the Custome of Kent the Lessee might remove such a Copper Justice Beaumond said that without any Custome a Lessee might so doe at any time during his terme But it is to be noted in the said case that the Furnace was by it selfe delivered as a moveable Chattell and not as part of the house for that was not medled withall nor at all delivered in extent as in the case betweene Miles and Prat where both house and Copper were delivered upon a Statute the house belike being held upon such a rackt rent as that the party did not desire to have it for hee might have had the whole being a Chattell and so have used the Copper during the terme And as touching all other fixed things the Law was taken in the said case in Henry the 7. his time to be all one as in the case of the Furnace viz. that they should goe to the Heire save onely that for glasse in the Windowes Pollard said it was otherwise viz. that that should goe to the Executors which none there denyed But since in the late Queenes time it was otherwise resolved touching glasse that it should not goe to the Executors and the like was there said touching Wainscotes and so also by the Lord Ander in the said case of Austin And touching Posts fixed for that they be parcell of the Freehold so also of Millstones Anvills Doores Keyes Windowes none of these be Chattells but parcell of the Freehold or thereto pertaining therefore not the Executors Now to come to Gardens also Whereas I before laid down a difference betwixt things sowed or not arising from the Earth without manuring and such as grow of themselves It will thence be concluded that the rootes of Carrets Parsneps Turneps Skerrits and such like coming and arising from yearely sowing must goe to the Executor and not to the Heire the case being so that the Gardner and Sower had the Inheritance of the Garden or Soile now though in most places this can rarely be a question of value yet about London and some great Townes it may and therefore not unworthy of a line or two a thought or two the rather for that the reason of this case may give light touching right in other Cases And in my opinion these notwithstanding there is a sowing and manurance to generate them and cause their being shall goe to the Heire and not to the Executor my reason is for that the thing of profit is the roote which is hidden in the ground and I hold it no reason nor agreeable to Law that the Executor should digge and breake the soyle and ground to search for her entrailes hee is to content himselfe with that which is above ground as millions of all kindes and the like whose fruit is above the ground but as for Artichoks though the fruit be above the ground yet I thinke they have no such yearely setting or manurance as should sever them in interest from the soyle therefore they shall goe with it to the Heire Let us now consider of things though not fixed to yet usually kept in houses viz. writings and evidences whereabout generally no doubt can be but that they follow the interest of the Land so as if they touch inheritance they pertaine to the Heire if but Termes Goods Chattells or Debts they pertaine to the Executor yea so doe Statutes and Bonds in Law howsoever otherwise in equity though they concerne the assurance and enjoying of inheritance purchased What if A. morgage the inheritance of Lands to B. upon Condition of redemption by payment of 500. pound to B. his Heire or Executor and B. dyeth the Deedes being delivered into his hands now the Heire not the Executor shall have them for though the money may be paid to the Executor yet meane time the Land descends to the Heire nor is there any debt to the Executor for A. may choose to pay or not Put it on the other side that the Land had beene sold for 500. pound not paid to A. but a Condition that if not paid to him his Heire or Executor by such a day then to re-enter and A. dyeth here is a debt to the Executor and no Land descended to the Heire of A. yet shall the Heire have the Deedes for that a Condition is descended to him Question hath beene touching Boxes and Chests wherein the Evidences concerning inheritance are and although the better opinion in our Bookes doth pitch upon this difference that where they are sealed up they shall pertaine to the Heire otherwise where not sealed I cannot conceive that difference to be grounded on good reason but rather thinke that Boxes which have their very creation to be the houses or habitations of Deeds should as appurtenant to them goe to the Heire whether sealed or not On the other side Chests made for other use viz. the keeping of Napery or Apparell shall not as I conceive be taken as appurtenant to Evidences because some be in them for so may other things also be Nor as touching them can sealing be of any effect but rather locking and not locking must make the difference touching them if any difference by inclosure Of things not actually in the Testator but accruing to the Executors by or after the Testators death These be of diverse sorts the first and chiefe whereof are things gotten and acquired by Action or Suite Secondly by Condition or Covenant without Suite Thirdly by Remainder Of things in Action TO speake first of the first it is cleare that debts due to the Testator be it by Bond Statute or Judgement or for Arrerages of Rent are not assets to charge the Executor untill receipt of them and it is as cleere that the Actions to recover these doe pertaine to the Executor and that the debt and dammages recovered
with his sithe come as a Midwife to helpe her delivery if then by the hasty death of the Owner before Action brought this great Trespasse should be dispunishable it were contrary as me thinkes to the purpose of the said Statute and a great defect in the Law Yet here perhaps touching this a fourth difference may be or arise out of the time of the death of the Owner viz. where he dyeth before time of Mowing and where not for Dato that in the former case because if such destruction or consumption had not beene yet the Owner dying before severance this should not have come to the Executor but have gone with the soyle to the Heire that therefore the Executor who is not damnified should recover no dammages Yet in the other case the Owner living till after Hay time clearely passed viz. till the end of August me thinkes now since this fruite of the Meddowes wombe should have beene a Chattell severed had not this Trespasser made unlawfull prevention Therefore the Executor to whom the same should have come towards the performance of the Will should have out of the said Statute an Action and remedy reached unto him to recover recompence in dammages for this wrong done in retardationem Executionis Testamenti A fifth and last difference may perhaps be in the state of the Owner for Posito that where the Land is his Freehold or Copyhold Inheritance no Action should be given to his Executor for Wood or Grasse taken or destroyed in his life time yet where he is but Tenant for yeares Guardian or Tenant by extent so as the very state in the Land was to come and is come to the Executor together with Quicquid plantatur solo me thinkes the Executor should have together with the state in the soyle the Action to punish the Robber of or Trespasser upon the soyle Thus having scanned and sifted to the best of my ability all differences and circumstances of this point how farre I am wide and wherein right Aliorum sit judicium or rather Altioris esto judicii But this is cleare that wheresoever Executors doe recover any dammages for trespasse or other wrong done to their Testator the money recovered at least if Execution be had or money received will be Assets in their hands as well as debts recovered upon Bonds or Bills or Lands by them taken in Extent upon Statutes Recognizances or Judgements Yea without ever having these moneyes Executors may make them assets in their hands viz. by making Releases or Acquittances or acknowledgement of Satisfaction for this amounteth to a Receipt and chargeth the Executors towards the Creditors with the whole penall summe though happly they receive but part as the principall or some like proportion Therefore there is great caution to be used by Executors in this kinde that unlesse they be sure they have Goods sufficient to pay all Debts and Legacyes they make no Release Acquittance or Acknowledgement of Satisfaction for more then they doe receive be it debt or dammages And the like caution to be used by them touching submission of debts or dammages to arbitrement whereby discharges of the same may grow for the submission to the Arbitrement being their voluntary act although the Arbitrators by their judgement doe discharge the debt or dammage in part or in whole yet shall the Creditors have like remedy thereupon against the Executors as if they had released or which is more received the same Other Actions there be of discharge which as the Testator himselfe in his life time might have had so may his Executor after his death viz. Writs of Error Attaint Disceyt Avdita Querela Identitate nominis But this last is given by Statute Whatsoever is regained by any of these wayes as unduely lost by the Testator shall also be Assets Speciall cases pertinent to the Premisses 1. Chattells come to Executors from the Testators yet not Assets 2. Assets which be no Chattells 3. Things in Action and in the personalâ—y turned into Chattells Reall e contra AS to the first I exemplifie thus A. makes B his Executor and dyes B. makes C. his Executor and dyes The Goods left by A. to B. as Executor farre exceedes his Debts and Legacyes or let us suppose no debts nor Legacyes of A. and that B. dyeth much in debt above the Goods hee leaveth and did make no alteration of the property of the goods of A. but meerely left them to C. his Executor Now shall not the Goods which came to B. as Executor of A. and so from B. to C. be lyable in Law to pay the debts of B yet in Conscience me thinkes they should and that C. should not receive them to his owne use as in Law he may where A. left no debts But if A. making B. Executor did also by his Will give him all his Goods and he in his life time made election to have them as Legatee or by his Will did so dispose of them or appoint them to goe as the goods hee had as Executor could not be given or disposed Now by this election they were altered in property from being his as Executor and so as his owne goods should be liable to his debts But things in action could not be so given or disposed viz. Debts c. yet if D. were indebted to A. one hundred pound and B. his Executor tooke new bond of him or another for it giving up the old Bond now was it become his owne duty and so shall stand in his Executor Another instance of this thus If A. patron of the Church of D. grant to B. the next avoydance the Church becommes voyde B. dies before he presents his Executor presents and hath the benefit of preferring his sonne or friend yet shall this make no Assets in his hands for payment of debts for that hee could not lawfully take money to present But if B. had dyed before the Church had become voyd Then because the Executor might lawfully have sold it the value should be Assets in his hands as I conceive except perhaps the incumbent had died so hastily after B. that the Executor had not time convenient to finde out a chapman and to sell it If in the other Case a stranger had presented and got his Clarke admitted and the Executors of B. had in a Qua. Imp. recovered dammages the money so recovered should have beene Assets Thus much of the first viz. that some things of the nature of Chattells may come to Executors and yet not be Assets Touching the second viz. that some things may be Assets in the hands of Executors which yet are no chattells I shall give but two Instances First where a man leaveth a Villen for yeares to his Executors and the Villen purchaseth Land in Fee-simple and the Executor entreth into the Land now hath hee Fee simple therein and this Land is Assets for payment of the Testators debts
So if a man by his Will give Lands in Fee to his Executors to be sold for performance of his Will These before the money thereby raised are Assets both for payment of debts and of Legacies But if the Lands had beene given to be sold onely for payment of debts they should onely be Assets for that purpose and not for payment of Legacies and so if it were expressed to be for payment of Legacies singularly this should not be Assets for debts as I take it For since these are not Assets of their owne nature but so made by the Will and disposition of the Testator me thinkes they cannot be otherwise nor farther Assets than as the Testator hath willed and disposed but though Lands thus given were Assets before the Stat. 21. Hen. 8. cap. 5. Yet how can it be so since for the very words of the Statute be that if one will by his Testament or last Will any Lands c. to be sold neither the money thereof comming nor the profits taken shall be accounted as any of the goods or chattells of the Testator which I conceive to be all one as to say that they should not be Assets for when an Executor denieth himselfe to have Assets the forme of his plea is Quod nulla habet bona nec â—atalla c. Yet since that Satute viz. in the late Queenes time the Law was twice admitted or conceived still to be according to the third of Hen. 6. viz. that the Land devised to be sold or the money thereof comming should be Assets Indeede in neither of those Bookes is there any mention of the clause in the said Statute and it is possible that it might be forgotten as in other Cases sometime hath happened But casting about how to reconcile those Bookes with the said Statute and not to suppose the same forgotten at both times both at the Barre and Bench though being but a short clause in the middle of a large Statute to other purpose it might well so have beene at the last though not hastily I grew to conceive that the said clause being in an Act which limitteth the Fees of Ordinaries and their Scribes according to the value of the goods of the deceased and then bringeth in this clause that the Lands willed to be sold shall not be accounted as any of the goods c. The Parliament meant thereby onely to exclude them to this purpose that they should not be accounted as part of the goods in the valuation according to which the said Fees were to be rated and though the words be generall that they shall not be accounted as any of the goods c. yet is it the more probable that the Parliament meant no further then as aforesaid because that clause after the Fees limitted in answerablenesse to the values is brought in by a Proviso viz. provided alwayes that if the deceased Willed any Lands to be sold the money nor profits shall not c. And thus perhaps it was understood and construed in the said late Queenes time though no mention be of any remembrance of that clause or provision in either of those Cases reported by the Lord Dyer As for the third viz. the changing of things out of the personalty into the realtie and e contra I shew it thus If a debt were due to the Executor as Executor by Statute Recognisance or judgement and he sue Execution and have Land of the debtors in extent now is the personall duty turned into a chattel reall On the other side if such an estate by extent or a Lease for yeares mortgaged come to an Executor and the debtor or mortgager payeth the money due now are these reall chattells turned into Assets personall Another speciall Case of Equity opposing Law IF A. be bound to B. by Bond Statute or Recognizance for assurance of Land B. dieth the Land descends to his heire or be it that B. sold the Land to C. and assigned to him the Bond Statute c. yet must the Sute or taking out of Execution be in the name of the Executor of B. and neither of the heire nor Assignee And that which is recovered or gotten in extent will be Assets in Law to charge the Executor as I take it yet in equity it pertaines to the Heire or Assignee Quaere If the Executor meddle not but onely suffer his name to be used Of things come to Executors by Condition First we will consider of Conditions bringing backe to Executors goods or chattells granted away by their Testators Touching which there is no doubt but if the Condition be any other than for payment of money or other things valuable by the Testator or his Executor the chattell returning to the Executors is Assets in his hands as put the Case a Lease for yeares Horses Sheepe Plate or other Chattell were granted by the Testator to A. upon condition that if A. did not pay such a summe of money or doe such other Act as the Testator appointeth and this condition is not performed after the Testators death now is the chattell come backe to the Executor and is Assets But the question hath beene and perhaps may be where the condition is that the Testator or his Executors shall pay the money to make voyde the Grantee and accordingly the Executor after the Testators death payeth the summe out of his owne purse not having any money of the Testators in his hands in this Case comming in question tempore Hen. 7. It was resolved at the last that this redeemed chattell should not be Assets but be to the Executor as his owne proper goods though at the first three Judges were of contrary opinion viz. that the goods redeemed should be in the Executor as goods of the Testator And truely I must confesse that I cannot yet finde good satisfaction in that Bookes resolution except wee shall take the Case there to be such as that which is put and reported by the Lord Dyer tempore Hen. 8. viz. that the money payd for redemption was as much as the full value of the goods pledged or mortgaged or else shall admit the Case to be that this redemption was not by payment at the day conditioned As to the first it were rare that any should lend money upon a mortgage where the thing mortgaged is not of better value than the money lent rare also that an Executor should take care to redeeme with his owne money that which should yeeld no benefit or advantage to him or his Testator Let us therefore scanne and examine the Point since the same may come frequently in use and this we may the more decently doe because the Lord Dyer in the Margent of the Case by him reported as aforesaid saith expresly that the said other temp Hen. 7. was not at all adjudged himselfe having viewed the Roll which he there sets downe and the names of the parties Wee will therefore put the Case thus
A. posessed of a Lease for sixtie yeares of one hundred pound Land mortgageth it for five hundred pound or be it that the mortgage or pledge be of a Jewell or peece of Plate for halfe the value and that before the day limitted for payment and redemption A. having made B. his Executor dieth and B. at the time and place maketh payment as was conditioned Now the question is whether this Lease Plate or Jewell being worth much more than the summe for which it was mortgaged shall be in him wholly in his owne right and to his own use or partly if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies Here it must be cleerely admitted that B. was inabled to this redemption onely and meerely by the Condition annexed to the mortgage or pledging It must also be admitted that this Condition and the power or interest to take benefit thereof to him came and was derived onely as Executor of A. This being premised it must needs follow as to me it seemes that the Condition working and having his operation in the redemption to destroy the Grant mortgage or pledging it must needs make these againe the Testators goods in statu quod prius and so to be in B. as Executor since in that right onely he was intituled to take benefit of the Condition For what is it which hindred before this from being the Testators goods nothing certainely but onely the force and strength of the mortgage or pledge Now by the redemption that is become voyd hath it losts its force therfore the property of these things must needs now be as if no such mortgage or pledge had beene or as if it had at the first beene voyde and of no force Thus must the Condition worke for him who made it viz. A. the Testator and those of the contrary opinion in the time of King Hen. 7. doe yet say That by this redemption the Testator is so much in debted to the Executor as he disbursed for the redemption which could stand with no reason unlesse by it the property and interest should be reduced to the Testators behoofe That thus it is is also proved as to me it seemes by the Case of mortgage of Inheritance upon which the heire making payment according to the condition is not now in as a new purchasor but as heire so as he shall have his age and be in Ward even for this Land Yea it shall be Assets in his hands for satisfaction of his Fathers or other Ancestors debts which in some respect is a harder Case than that of the Executor for he hath meanes to satisfie himselfe of the money disbursed either out of the thing redeemed or other goods of his Testator but the heire hath no such meanes Yet it will be asked how the Executor can be free from mischiefe for if this thing redeemed be intire as the Cup or the Lease the whole will be taken in execution for the Testators debt To admit this yet here is one cleare way of remedy viz. the Executor may before such Execution sell the thing and so pay himselfe and retaine the surplusage to the Testators use and the like of this is frequent in use viz. for Executors to pay of the Testators debt with their owne money and to make themselves satisfaction out of the Testators goods Besides it not impossible that this redeemed thing should be thus in interest parted that answerably and proportionably to the summe disbursed for redemption with reference to the value of the thing redeemed a moyetie or third part or three parts therof should be to the Executor in his owne right as his owne proper goods and the rest in him as Executor As posito that A. and B. were Tenants in Common of such an entire Chattell A. maketh B. his Executor and dieth Now hath B. one moyety as Executor and another as his owne proper and upon a Judgement against him as Executor that moyety onely which hee hath as Executor must be taken in execution and here may be remembred how in execution of a Judgement or levying of an Amerciament out of an intire Chattell of more value than the summe to be levyed the whole is to be sold and the surplusage above the debt or Amerciament is to be delivered backe to the owner For in all this debate we must presume the thing redeemed by the Executor to be of better value than the summe payd else wee may easily admit the whole to the Executor Againe the Lease for yeares is not so intire a thing I meane the Land let but that thereof partition may be made yea inforced by Action betweene joynt tenants and Tenants in Common But here will be objected the Case of redemption by the daughter and heire who though she have a brother borne after so as now she is no longer heire yet she shall as the Booke saith retaine the Land redeemed from the heire as a Perquisite or Purchase As for this which I will not oppose the Law so frameth to the favour of the daughter because of great mischiefe to her if being stripped of the rest of the Inheritance by the birth of a brother she should also lose that which her money had redeemed without having any remedy to have her money againe or any recompence for it but in the other Case there is no such mischiefe for that the Executor may pay himselfe as hath beene shewed Now on the other side if the Case shall be understood that the redemption was by payment after the day then will I easily admit that the property or interest is in the Executor to his owne use or that the Condition now having no power to reduce it backe or to operate any thing It is rather a re-emption than a redemption since it was at the Will of the Mortgagee to dispose it at his pleasure and any stranger as well as the Executor might thus have redeemed viz. repurchased it therefore onely Equity and not Law in that Case can make any part of the value Assets in his hands And so also I thinke if wee should admit in the other Case of payment at the day that the property of the chattell is to the Executor as his owne and not his Testators goods no part of surplusage of value can in Law be Assets howsoever in Equitie Lastly if the Executor redeeme by payment at the day with the Testators owne money or goods none will doubt but that the thing redeemed is in him as Executor and the money by him payd for redemption is well Administred the goods redeemed being of better value But this way it makes no difference whether the whole value of the goods redeemed shall be held Assets and the money payd for redemption stand drowned therein or that that summe be still adjudged in the hands of the Executor as Assets and onely the surplusage of the thing redeemed over and above the summe payd for redemption
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
bindeth the Lessor or his Executor to make recompence Of wrongs done by Testators and whether Executâ—rs be lyable to amends ALthough Executors doe represent the persons of their Testators yet if the Testator commit any trespasse upon the Goods of another or upon his person of Lands no action lyeth for this against the Executor for Actio personalis moritur cum persona So if a Sheriffe Jaylor or keeper of Prison suffer one in execution for debt or dammages to escape though hereby the party at whose suite the Execution was be intitled to an action viz. an action upon the case against such Officer by the Common Law and by Statute an action of debt yet if he so suffering dye for that such sufferance was a wrong of the nature of a trespasse no action lyeth against his Executor for the same And upon the same reason as I presume if one carry away his Corne and Hay without setting out the Tenth although the treble value be recoverable against him in an action of debt yet if he dye before such recovery the action is gone and lyeth not against his Executor No not although the Testator were a Lessee for yeares so as his state came to his Executor Like Law in other penall Statutes as for arresting one at the suite of I. S. without his privity or assent Or for not appearing as a Witnesse being served with a sâ—b poena and having charges tendered and many like yea if a Lessee for yeares commit waste and dye no action lyeth against the Executor for this waste for all these cases are within the rule of actio personalis moritur cum persona and many other like Cases might be put but these may suffice Yet if a Parson Vicar or other spirituall or Ecclesiasticall person doe suffer a ruine or decay of the houses or buildings upon his such spirituall Benefice or promotion and dyeth his Executors are lyable by the spirituall or Ecclesiasticall Law to the successors Suite for amends to the repairing of such spoyle or decay And because some used fraudulâ—ntly to grant away their Goods so as nothing shall be left to their Executors it was enacted temp Elizabeth that such Grauntees of Goods should be lyable to the successors suite for these dilapidations as if they were Executors As for one other case of this nature viz. where an Executor wasteth the Goods of his Testator or an Administrator the Goods of his Intestate and dyeth Whether his Executor be subject to Action for this or not I adjorne the reader to that place where I shall treate of such wasting or devastation by Executors Vnto this head not unfitly may be referred what before is said of Actions against the Executors of the Debtors Heire and the Executors of the Ordinary for the Specialty binding to payment reacheth not to any of these but because their Testators should have payed these debts with the Goods or Profits of the Lands of the Debtor and did not but retained them to themselves therefore for this as a wrong are they suable as I take it So also by the same reason are the Executors of an Administrator chargeable where hee did neither pay the debts nor leave the goods to the next Administrator but otherwise disposed of them Yet an Executor is not chargeable in an action of Detâ—nue nor of account except to the King for the Testators detaining and not paying or answering things received or under his charge And the reason why after account made before Auditors and the Bayly or receiver be found in Arrerages and dye that in this Case his Executor is chargeable is because the auditors are made Judges by the Statute West 2. cap. 11. and so this Arrerage which they have judged is a debt by Record But if the case be put on the other side viz. that the Bayly or Receiver have found in surplussage upon his Account viz. that he hath laid out more in his Lords or Masters businesse then his receipts amounted unto and then his Lord or Master dyeth now shall not he have any action against the Executors for the surplussage because it is out of the purview of the said Statute THE SECOND TABLE Chap. XII Directing the Order and Method to be used by Executors in payment of the Testators debts 1 OF disbursements about the testators funerall 1 2 About proving of his Will 2 3 Payment of the testators debts upon record 3 4 And first debts to the King or Crowne 4 5 Debts by judgment or recovery in some court of record 8 6 Debts by Recognizance and Statutes 11 7 Debts by specialty by Bonds Bills c. 14 8 Debts by Rent reserved upon Leases of grounds farmed by the testator 18 9 Duties by the testators assumpsit or promise or upon simple contract made by him 29 Chap. XIII Of Devastation or Wasting 1 WHat shall be said to be a wasting or devasting and how many wayes that may be done 32 2 Who shall by this Act of devastation be charged to yeeld recompence and make satisfaction 36 3 Who shall reape the benefit or take advantage of this devastation 38 4 How farre the executor thus wasting shall incurre damage or make his owne goods lyable 40 5 By what way or meanes shall reliefe be had upon this point of wasting 41 Chap. XIV Of an Executor of his owne wrong 1 WHat acts or intermedlings of such an one not being executor nor administrator by right shall make him to become an executor by wrong 49 2 In what manner and by what name such shall be sued especially when another then is executor or administrator or himselfe after such act becomes administrator 55 3 How farre an executor of his owne wrong becomes lyable and obnoxious to suits 57 4 What acts done to him or by him who is executor of his owne wrong shall stand firme and good as done by or to the right executor 58 5 Of addition and alteration by Statute 43. Eliz. c. 8. 60 Chap. XV. Of Pleas by Executors and which be best which most prejudiciall to them 1 TO plead hee was never executor nor ever administred as Executor 62. 67 2 To plead fully administred 64 Chap. XVI OF judgement against executors owne goods though no plea of the defendant nor devastation doe so occasion and of the severall manners of judgements in severall cases 73. Chap. XVII Of married women and Infants Executors 76. 1 WHether they may make Wills with or without their husbands assent and how where and in what cases 77 2 Whether they may be made executors without their husbands assent or how far their husbands may hinder it 84 3 Touching administration viz. what acts in execution of the executorship they may doe without their husbands or their husbands without them 89 4 Touching Infants and their making or being made executors wherein the severall ages of females 92 The severall ages of males 93 Chap. XVIII Of Legacies 1 WHether any
from the attainder and punishment incident to a fellon Regularly it is thus but non est regula quin fall it one of much lesse yeares having attained ripenesse of discretion and discerning shall incurre the like attainder as one of full age as was resolved in the time of King Henry the seventh touching an infant but of the age of nine yeares who having killed another boy of like age with his knife and then hiding the slaine boy and excusing the blood found upon him by saying that his nose had bled It was held by the Judges that he was to be hanged as a fellon his such non-age notwithstanding The other point touching which this age of fourteen yeares is especially materiall is touching an heire of lands held by socage for in case such heire be under that age he is to be in ward to the next kin but if he be of that age he is not to be in ward at all for that the law judgeth him to be of discretion at those years and therefore a Guardian in Socage being in effect but a Bayliffe accountable hee hath no need of such an one other than such as himselfe shall chuse The third age in and touching males materiall is fifteen yeares for every Lord of a Manour or one having Freeholders in Socage or by Knights Service when his eldest son commeth to that age viz. fifteen yeares is to have of them ayd for the making of him a Knight towards which every one holding by a whole Knights Fee is to pay twenty shillings and so ratably for more more and lesse lesse and each holding twenty pound land in Socage is to pay the like summe and so ratably for more or lesse The fourth age of males is the full age of one and twenty years which maketh him free from wardship having lands held by Knight-service descended unto him And also makes him able to alien lands or goods makes firme his bond statutes recognizances c. for although at fourteene the law judge him of discretion yet doth it not hold him fully ripe till one and twenty The last age of males respected by the law is seventy yeares at which time Sheriffes are to forbeare to impanell them in Juries and in case they doe not such old man may have a writ to the Sheriffe grounded upon the statute for that purpose made in the time of King Edward the first commanding such Sheriffe to forbeare the impanelling of him and hee may have an action to recover damages upon that statute This is called by most a writ of Dotage a word perhaps anciently taken in a good and favourable sense Pro dote etatis viz. a gift privilege or exemption allowed to age in favour thereof and as a benefit Having thus by way of ingredient or introduction taken view of these severall ages let us now see wherein and how age is materiall touching them who are to make or to bee made executors and what age required thereabout Master Perkins saith that one of foure yeares old may make a will and consequently executors and his reason is because the executors being to account before the Ordinary it cannot be intended but that the goods shall be distributed for the good of his soule He speakes as if he only made an executor by his will but did not bequeath any thing but left all to the executors conscience and discretion which is not usuall though fesible as before I have shewed or said at least But admit it were so and no bequest at all contained in the will yet since at that age an infant hath no discretion to elect a fit person to distribute his goods money and other things no nor to make continuation of an executorship to another to whom perhaps the infant was executor I cannot see that his will should be of any force but if he be of the age of 14. yeares being the age of discretion in the judgement of law then I should hold him able to make a will although yet he be an infant till twenty one yeares and can make no gift of land nor goods which shall be of force And Babington chiefe Justice to other purpose makes like distinction betweene an infant of such tender yeeres and one come to the yeares of discretion So also as before wee shewed is it in the Case of fellony And that way also sounds that which Hanck saies in Henry the fourth his time viz. that an infant of 18. yeeres old may bee a disseisor as implying that his yeeres may bee so tender that as Candish saith of an infant in Edward the third his time hee is not to bee intended able to know or discerne betweene good and evill me thinkes therefore hee should bee at the least of the age of discretion viz. 14. yeeres who should bee able to make a will and consequently an Executor And the custome for an infant of 15. yeeres old to bequeath by will hath as to mee it seemes affinity with this opinion though there the Case was of land in a borouâ—h devisable by custome and that way reflecteth the Case in the time of King Henry the sixth where it was said that an infant under 15. yeeres of age should not wage his Law viz. take an oath to acquit himselfe of a debt or excuse his default in an action reall And further reason of this opinion will arise out of the consideration of an infant made an Executor Now touching an infant made Executor how young soever hee bee the making of him so is not voyd but yet the execution of the will which is the performance of the office of Executor shall not bee committed to him till hee come to the age of 17. yeeres by the Law spirituall and till then for that hee is not able to doe the part of an Executor administration is to bee committed to some other yet if it bee a woman infant who is so made Executrix in Case shee bee married to a man of 17 yeeres old or more now is it as if shee were of that age and her husband shall have the Execution of the will and if administration were before committed during the minority of the woman it shall now cease as is said in Princes Case Yet I doe a little marvaile at these opinions considering that these things are managed in the spirituall court and by that Law and it intermedles not with the husband in the wives case now by that Law and not our common law comes in this limit of 17. yeers And I have seene it otherwise reported in and touching this last point Further touching infants Executors and under that age of 17. yeeres this is to bee noted viz. that such an one is not able as an Executor to assent to a legacy so as it may by virtue thereof settle in the legatee Also if administration bee during such minority committed with speciall words of restraint or limitation viz.