other the goods chattels or credits he hath as Executor the property not being altered for that he hath not them properly as his own or to his owne use onely he may make a continuation of the Executorship and his Executor shall have them as Executor to the first Testator as was resolved by the Judges of both Benches in the late Queenes time And if he be Administrator the bequest is then also voide nor then will they goe to his Executor but to a new Administrator but on his death-bed he may give them by Word or Deed though not by Will Next if a man have debts owing to him as many have much it is considerable whether by way of bequest in his Will hee can give away these to any from his Executors And doubtlesse he cannot effectually in Law they being not subject to assignement unto any except the King So as if he give such a debt to A. and such to B. yet must the sute for them be in the name of the Executor and so also the Release or Acquittance for them and not in their names to whom the bequests is But when they be received if there be no debts to pay the Executor ought to deliver them to the party to whom the bequest is and therefore may be compelled in Court of Conscience or in the Spirituall Court Therefore the Case of the bequeathing money payable upon a Morgage is in this manner to be understood to be good and not otherwise as I take it He that is joyntly with any other estated in Lands or goods can give no part by his Will but all will survive but by Act in his life hee may dispose of his part and the Assignee may dispose of his moiety by Will yea though it be halfe an Horse or Oxe that cannot be divided So of a Lease of Lands or Tithes or Grant of goods to two habendū one moyety to the one and the other moyety to th' other each may give his moyety by Will But if one be possessed or estated for yeares by Lease Wardship or Extent c. in the right of his wife or have the next avoidance of a Church in her right he cannot by Will give or bequeath any of these but notwithstanding they will remaine unto his wife upon his death but yet his Gift or Grant of them taking effect in his life time would binde his wife and carry away the interest from her If one be Tenant for the lives of one or more others as oft times men take Leases for lives of yonger persons than themselves this cannot be by Will disposed of for that it is no chattell nor is it within the Statutes of Wills for that it is no state of inheritance Therefore let the party looke to convey it in his life time lest it goe to an Occupant viz. him who first shall enter If it be a State in Land hee must either make Livery have a bargaine and sale inrolled or covenanted to stand seised to the use of his wife or some of his blood or make a Lease for yeares determinable upon those lives Good it be by bargaine and sale for yeares if the thing be in Lease that so without Inrolement or Atturnement the Rent may passe else a bargaine and sale may be made for a moneth or such like time and then a Release or Grant of the reversion in stead of Levery Seisin But if a man have a Lease for never so many yeares determinable upon life or lives that is if such or such live so long which unskilled persons call a Lease for lives this State may well enough be given and disposed by Will because it is but a chattell If a man seised in Fee or in Tayle of Land having Corne growing upon it and by his Will doe give the Corne and die before severance this is a good bequest because the Corne should have gone to the Executor So it is also of a Parson touching his Glebe and a man seised in the right of his wife or his owne right but for life But as for trees growing upon the ground these can no otherwise be given by Will then as the Land it selfe upon which they grow may be given of which matter as not pertaining to the Office of Executors viz. How and in what manner Lands may be given by Will I entend not to treate in these discourses Of the Revocation and Countermand of Wills and new Publication HAving considered of the making of Wils and Executors Let us before wee come to the Probat consider of Revocation for that may take away the force of a Will rightly made A Will therefore having two parts viz. Inception which is the making and Consummation which is the death of the Testator or maker of the Will there is power in him at any time before death to revoke or alter his Will at his pleasure Consider we therefore of Revocations and also of new Publications or Reaffirmance of Wills in whole or in part As therefore a Will may bee made by Word So also may a Will made in Writing be by Word revoked or disanulled for since every making of a later Will is a Countermand and suppression of the former Will and since a Will may be made Nuncupatively or by Word and so by making a verball Will one may revoke a Written Will It will thereupon follow that one by Word may expresse the alteration of his minde thus farre that the Will by him formerly made shall not stand but be revoked and annulled and this will stand and be effectuall so as if he after dye without making any new Will or new Publication or Reaffirmance of the former he dyeth intestate or without will As a Will may bee wholly revoked so also in part Hereabout a good resolution was in a Kentish Case where one Ryete by his Will in writing did give some Gavel-kinde Land to one Harrison and five dayes before his death said in the presence of witnesses that this gift should not stand and that he would alter it when he came home desiring them to beare witnesse of his Revocation Now before he came home he was killed by the said Harrison who caused the Will in writing to be proved and after he was attainted and hanged for the murther and his Sonne by the Custome of Kent viz. the Father to the bough and the Sonne to the plough entred into the Land and this manner of Revocation by word onely was held sufficient although the Will in writing were not cancelled nor defaced And the like resolution for verball Revocations is implyed in the Case of Forse and Hembling where it being resolved that a Feme Covert or marryed woman by word Countermanding and Revoking her Will formerly made when she was a sole or unmarryed Woman this was not effectuall nor of force by reason of her Coverture taking away the freedome of her
him in service till a fit time of providing him a new Master and fit for him not to depart suddenly Now for things personall without life These are evident viz. all Householdstuffe Implements and Vtensills Money Plate Jewells Corne Pulse Hay Wood felled and severed from the ground Wares Marchandise Carts Plowes Coaches Saddles and such like moveable things More doubtfull Cases touching things personall FIrst touching things living If the Testator had any tame Pigeons or Deere or Conies or Fesants or Partridges these all aswell as Chickens shall goe to the Executors so though not tame if they were taken and kept alive in any Roome Cage or like Receptacle as Fesants and Partridges often be so fish in a Trunke as also young Pigeons though not tame being in the Dovehouse not able to flie out yet their Dammes the old ones shall goe to the Heire with the Dovehouse And if the Testator had any reclaimed Hawkes they also as Chattells Personall shall goe to the Executor because they are things commonly vendible And whereas Hounds Greyhounds and Spaniells be not so commonly bought and sold nor so anciently have beene yet are they now growne to be a Marchandize and why not for although they be for the most part but things of pleasure that hindereth not but they may be valuable as well as Instruments of Musicke both tending to delight and exhilarate the spirits A cry of Hounds hath to my sense more spirit and vivacity than any other Musicke Adde hereto that there may be some profit and advantage gotten by them both quoad adeptionem boni ademptionem mali the getting of some good food and the preserving of others as Lambes Conies Fish Pultry by killing Foxes wilde Cats and others which destroy them And wee know that money is recoverable in dammages for taking away such or a Mastiffe serving to keepe an house So of Ferrets to catch Conies c. Therefore they are valuable But it may perhaps be objected that none of these above are Cattell and therefore not replevisable consequently no property in them for when more then one living Chattell is distrained the replevin is to be by the name of Averia signifying Cattell For answer not to insist that one may have property in divers things whereof no Replevin lyeth as Corne or Hay not in Sackes nor Cartes money not shut in bagge nor box c. I further say that even the word Averia may be applyed to these for so I find it to Hens and Capons in the Booke of Entries viz. in the writ of Curia Claudenda where the Plaintiffe complaines of the Defendants not making his Mounds per quod averiaipsius A. viz. Capones galinae alia Averia ipsius A. that is whereby his Cattell viz. Capons and Hennes and other his Cattels came into the Plaintiffes House and Garden to his dammage c. And both Newport and Newdigate hold that a writ of replevin lyeth of such things though Brudenell were of contrary opinion yet he also held an action of Trespasse maintainable for taking of them and therefore admitted a valuable property in them Now come we to things without life and first to those abroad in the Fields Put the case that a man dyes in Iuly before Harvest I meane seised for life or in Fee or Taile in his owne right or his Wives or estated for yeares of Land in the right of his Wife being sowne with Corne or any manner of Graine the common saying is Quicquid plantatur solo solo cedit yet this shall goe to the Executor of the Husband and not to the Wife or Heire who shall have the Land but Hay growing viz. Grasse ready to be cut Apples Peares and other fruite upon the Trees shall goe to the Wife as also if they had beene upon a mans owne Land of Inheritance they should goe to the Heire though the Corne should goe to the Executor The reason of difference is because this later comes not meerely from the soile without the industry and manurance of man as the other doe and I take Hoppes though not sowne if planted and Saffron and Hempe because sowne to pertaine as Corne to the Executor All those yet shall passe to one to whom the Land is sold or conveyed if not excepted though never so neere reaping felling or gathering But what if the Wife had the Lease for yeares as Executor to some former Husband or other friend and the Husband after sowing dyes who then shall have the Corne Certainely the Corne shall goe to the Executor of the last Husband at least so much as is more then the yeares value of the Land or the making it up by addition of other things for the value is to be assetts for payment of debts and Legacies Put the case againe that the Husband and Wife were joynt-joynt-tenants of the Land and then the very Corne growing shall survive to her together with the Land and though the Husband sowed it yet shall it not goe to his Executor Being in consideration of things growing on the ground let us not forget to thinke of Trees sold by I. S. seised of the Inheritance of the Land to I. D. who dyeth before felling this Interest is a Chattell which shall goe to the Executor and not to the Heire of I. D. but some colour may be that these because fixed to the soyle and Freehold are reall Chattells as the Interest in Land is and not personall So also of Trees Excepted by him who selleth the Inheritance of the Land but in both cases I conceive this interest to be personall and not reall for that as it is a propriety of Chattell in the Vendee or Vendor with exception it stands in consideration severed and abstracted from the soyle or ground where the Trees grow though the Trees be not actually severed by the Axe from their mother Earth But if the Lessor for yeares or life except the Trees these continue parcell of the Freehold and Inheritance And after Corne reaped and before the Tithe set out the Inheritor of the Tithe dying I thinke the Executor and not the Heire shall have the Tithe after set out Now Let us come home to the Testators house and see in and about it some doubts what pertaines to the Heire and what to the Executor Question hath beene both of old and of late touching Coppers Leads Furnaces Fat 's for Dyers or Brewers Pales Rayles Glasse in Windowes Tables Dormants Wainscotes Doores Lockes Keyes and such like to whom these should goe whether to the Heire or Executors And in the latter end of Henry the 7. his time an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall the Heire brought an action of trespasse against him for so doing and it was adjudged for the Heire viz. that this was to goe as part of the Freehold and Inheritance to the Heire and
A. posessed of a Lease for sixtie yeares of one hundred pound Land mortgageth it for five hundred pound or be it that the mortgage or pledge be of a Jewell or peece of Plate for halfe the value and that before the day limitted for payment and redemption A. having made B. his Executor dieth and B. at the time and place maketh payment as was conditioned Now the question is whether this Lease Plate or Jewell being worth much more than the summe for which it was mortgaged shall be in him wholly in his owne right and to his own use or partly if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies Here it must be cleerely admitted that B. was inabled to this redemption onely and meerely by the Condition annexed to the mortgage or pledging It must also be admitted that this Condition and the power or interest to take benefit thereof to him came and was derived onely as Executor of A. This being premised it must needs follow as to me it seemes that the Condition working and having his operation in the redemption to destroy the Grant mortgage or pledging it must needs make these againe the Testators goods in statu quod prius and so to be in B. as Executor since in that right onely he was intituled to take benefit of the Condition For what is it which hindred before this from being the Testators goods nothing certainely but onely the force and strength of the mortgage or pledge Now by the redemption that is become voyd hath it losts its force therfore the property of these things must needs now be as if no such mortgage or pledge had beene or as if it had at the first beene voyde and of no force Thus must the Condition worke for him who made it viz. A. the Testator and those of the contrary opinion in the time of King Hen. 7. doe yet say That by this redemption the Testator is so much in debted to the Executor as he disbursed for the redemption which could stand with no reason unlesse by it the property and interest should be reduced to the Testators behoofe That thus it is is also proved as to me it seemes by the Case of mortgage of Inheritance upon which the heire making payment according to the condition is not now in as a new purchasor but as heire so as he shall have his age and be in Ward even for this Land Yea it shall be Assets in his hands for satisfaction of his Fathers or other Ancestors debts which in some respect is a harder Case than that of the Executor for he hath meanes to satisfie himselfe of the money disbursed either out of the thing redeemed or other goods of his Testator but the heire hath no such meanes Yet it will be asked how the Executor can be free from mischiefe for if this thing redeemed be intire as the Cup or the Lease the whole will be taken in execution for the Testators debt To admit this yet here is one cleare way of remedy viz. the Executor may before such Execution sell the thing and so pay himselfe and retaine the surplusage to the Testators use and the like of this is frequent in use viz. for Executors to pay of the Testators debt with their owne money and to make themselves satisfaction out of the Testators goods Besides it not impossible that this redeemed thing should be thus in interest parted that answerably and proportionably to the summe disbursed for redemption with reference to the value of the thing redeemed a moyetie or third part or three parts therof should be to the Executor in his owne right as his owne proper goods and the rest in him as Executor As posito that A. and B. were Tenants in Common of such an entire Chattell A. maketh B. his Executor and dieth Now hath B. one moyety as Executor and another as his owne proper and upon a Judgement against him as Executor that moyety onely which hee hath as Executor must be taken in execution and here may be remembred how in execution of a Judgement or levying of an Amerciament out of an intire Chattell of more value than the summe to be levyed the whole is to be sold and the surplusage above the debt or Amerciament is to be delivered backe to the owner For in all this debate we must presume the thing redeemed by the Executor to be of better value than the summe payd else wee may easily admit the whole to the Executor Againe the Lease for yeares is not so intire a thing I meane the Land let but that thereof partition may be made yea inforced by Action betweene joynt tenants and Tenants in Common But here will be objected the Case of redemption by the daughter and heire who though she have a brother borne after so as now she is no longer heire yet she shall as the Booke saith retaine the Land redeemed from the heire as a Perquisite or Purchase As for this which I will not oppose the Law so frameth to the favour of the daughter because of great mischiefe to her if being stripped of the rest of the Inheritance by the birth of a brother she should also lose that which her money had redeemed without having any remedy to have her money againe or any recompence for it but in the other Case there is no such mischiefe for that the Executor may pay himselfe as hath beene shewed Now on the other side if the Case shall be understood that the redemption was by payment after the day then will I easily admit that the property or interest is in the Executor to his owne use or that the Condition now having no power to reduce it backe or to operate any thing It is rather a re-emption than a redemption since it was at the Will of the Mortgagee to dispose it at his pleasure and any stranger as well as the Executor might thus have redeemed viz. repurchased it therefore onely Equity and not Law in that Case can make any part of the value Assets in his hands And so also I thinke if wee should admit in the other Case of payment at the day that the property of the chattell is to the Executor as his owne and not his Testators goods no part of surplusage of value can in Law be Assets howsoever in Equitie Lastly if the Executor redeeme by payment at the day with the Testators owne money or goods none will doubt but that the thing redeemed is in him as Executor and the money by him payd for redemption is well Administred the goods redeemed being of better value But this way it makes no difference whether the whole value of the goods redeemed shall be held Assets and the money payd for redemption stand drowned therein or that that summe be still adjudged in the hands of the Executor as Assets and onely the surplusage of the thing redeemed over and above the summe payd for redemption
from the very time of making the lease as either by a contract real of quid pro quo or rather by an operation of law or legall constitution or ancient custome of the Realme without any contract of persons Lastly for that the lessor doth not distraine the cattell therefore or in that respect for that they are or were the goods of the testator but for that hee found them levant and couchant upon the land which must afford his rent or a distrâ—sse for it if behinde so as if they had beene any under tenants or strangers Cattell they might have beene distrained Some may perhaps object this reason why these impounded cattell should be delivered in execution viz. for that where otherwise the creditor by statute or judgement should lose all or part of his debt yet by this releefe done to him shall not the lessor lose his rent for that he may at any time after distraine any goods or cattell found upon the ground at any time during the continuance of the lease But here besides the point of delay and stay for this rent which to many is the sole meanes of maintaining their households and families this further is considerable that perhaps the lease may be neere expiring perhaps so highly racked and rented even to or above the value as that the executor having his testators stock taken from it and him by execution will not stock it any more and so the land lying fresh if the lessor shall lose the benefit of his former distres he shall be perhaps without remedy for his arrerages of rent And if the case were of a distres for rent behind after the testators death I conceive though not so strongly for most of the reasons abovesaid that the law would be all one as in the other case for though in this case respect shall not be had to the executors losse upon whose goods the law casts this debt though not the other yet here the point of losse must fall either upon the lessor losing his distresse or upon the other creditor by specialiy or record losing wholly or in part his debt And in respect of this locall tye upon this land for paiment of the rent whereto even the fealty of the lessee and tenure of the land bindeth him and it I think no act that the lessee can do by entring into bonds or statutes or having judgements against him can hinder the lessor or reversioner from taking his remedy upon this leased land for the rent therefore due but rather any other creditor shall be a loser in his debt Doubtlesse iâ— in barre to the avowrie for this rent due either before or since the testators death the executor will plead that the testator was indebted a thousand pounds by statute recognizance or judgement which is more then all his goods amounted unto it will be no good plea but may be demurred upon What if hee plead so much debt of record to the Crowne surely I doubt whether this plea will be allowed in any other Court then the Exchequer yet if these arrerages of rent shall be levied upon the land so as either the executor must pay it or lose the cattell distrained by a returne irreplevisable and then shall not have sufficient to satisfie the debt to the Crown I see not how he shall well escape when pursued in the Exchequer to make up this Crowne debt out of his owne purse which is hard For this we may pitch upon as a Maxime and principle that an executor where no default is in him shall not be bound to pay more for his testator then his goods amount unto Againe it is a rule that where nothing is to be had viz. justly to be had the King loseth his right and our bookes tell us that the Kings Prerogative must not do wrong Potestas ejus juris est non injuriae nam potestas injuriae non est Dei sed diaboli On the other side it may be said that if land leased come to the King by grant outlawry or otherwise the rent reserved cannot be distrained for and therefore is it not very unreasonable nor incongruent that the Kings interest for his debt should make the distres of a subject to stand by and give place This therefore among other of the premises do I leave as a quaere nor is it altogether unprofitable either for an executor or creditor to know what wayes and passages what cases and contingents be doubtfull and hazardous And if in these unbeaten paths where our bookes and relations have held me forth no light expresse or particular I have erred in mis-resolving or missing to resolve I hope I shall without difficulty obtaine pardon Now let us consider of assumptions or promises made by the testator upon good consideration the performance whereof or making recompence and satisfaction for not performing doth lye upon an executor as before is shewed These therefore are to come behinde and give place unto all the former so as an executor this way or for these sued may pleade debts by specialty rent c. amounting to the whole goods And yet these debts by contract or assumption expresse are to be satisfied before legacies be to be had First because by the common law of the land those are recoverable and so are not legacies next because as our bookes speake it concernes the soule of the testator to have aes alienum all duties and debts to other men satisfied before the debtors voluntary gifts or bequests Also these debts by assumption or simple contract are to be satisfied before the reasonable part of the wife or children to which by custome in some Counties they are intitled see 21. Ed. 4. 21. 2 Ed. 4. 13. 2. Hen. 6. 16. And note that in such an action upon the case it is not of necessity to lay or set forth in the declaration that the defendant hath assets to pay all debts by specialty and this also but if there want the defendant must alledge that in his excuse for else it shall be presumed that he hath assets So also in an action upon the case grounded upon the executors owne assumption to pay his testators debt and yet as the L. Cooke conceives and upon good reason as to me it seemes if the executors so promising had not assets sufficient in his hands to pay this debt promised he pleading non assumpsit may give that in evidence for then the consideration faileth as also if there were no such debt due since the plaintife could not have recovered if he had sued and so his forbearance to sue was no valuable consideration Chap. XIII Of Devastation or Wasting THat which S. Paul of dispensers spirituall who are as it were the executors of the last will and testament of our Saviour Christ doth say or enjoyne viz. that they must be found faithfull The same is required of these lesse or inferiour dispensers the executors of mens Wils and
the second point it may have these two parts 1. When the executor is able to give such assent to a legacy And 2. when he may do it with safety As for the first he is able before probat of the will to assent unto the execution of a legacy as elsewhere is shewed and that although he be not of full age of 21 yeares but if he be under 17 yeares so as he is not able to take upon him the office of an executor and therefore administration is during that time to be committed to some other Here his assent is not of force or effectuall as wee find in Princes case to have been held in the case of Pigot and Gascoine As for the second part till all debts be payd the executor may not safely consent that the legatee enter into the lease or chattell devised no more then he may pay money bequeathed if there be not sufficient also to pay all debts Of these things more is said elsewhere Yet because the reader or he that desires direction in these points will look for them under this title I thought not good here to be altogether silent touching them As for the third point viz. Whether the assent of one executor where there be many be sufficient I see not how to doubt since any one executor may give away any goods of the testators or release any debts due to him therfore much more assent which is no more or greater work in effect then an atturnment of one lessee upon a grant of a reversion And if there want to pay debts he only who assented shall answer for it of his owne goods and not his companions But if this executor be either under the age of 17 yeares or under coverture viz. a woman maried such is not able to give a good assent to binde the others no nor themselves for then thereby the Infant might draw a debt upon himselfe and the wife upon her husband by assenting to or paying of a legacy there not being sufficient goods to pay all debts But the husbands assent is sufficient where the wife is executor for his acts whom she hath chosen to be her head may prejudice as well her as himselfe yea though she were within age yet he being of full age his assent will stand good But if he or another executor in his own right be above 17 yeares of age and under 21 I doubt whether now his assent will be sufficient at least except the case be put that there be assets sufficient which perhaps there may be materiall though not in the other See more hereof after in the title of women covert and Infants executors As to the fourth point first there may be an assent election implyed as well as expresse for if in the devise or bequest the legatee be appointed to do some act as in respect of the legacy and the excecutor doth accept the performance thereof this amounteth to an assent So if the devise be to an executor for the education of some children which he doth accordingly educate this makes an election to have the thing by way of legacy and not as executor as appeares by the case of Paramoor and Yardly Plowd 543. So if an horse be bequeathed and one offering to buy him of the executor himselfe he directeth him to go and buy the horse of the legatee or if the executor himselfe offer money to the legatee for the horse this implyeth an assent that it should be the legatees by the will and so was it held in the case between Low and Carter where the devisee of a terme did grant it to the executor and this acceptance of a grant from him was held to imply the executors assent that it should be his to grant But I see not well how that should be law which in the latter part of the Lo. Dyer is found viz. where a terme was devised to I. S. and he was made executor and after the death of the testator entred and occupied the lands a whole yeare without proving the Will that this was an election to have it as devisee and not as executor For first he had good right to the terme as executor before probat and so might clearly in that right have taken the profits although it had not bin devised or bequeathed to him and that before any will proved Secondly he could not by right have it as legatee without assent of himself or some other as executor Therefore this general accepation can determine no election as elsewhere is held As for disassent or disablement to assent As if the executor do once declare his assent that the legatee shall have his legacy he may then enter into it or take it notwithstanding the executors countermand or revocation of his assent after So on the other side I think if he do fully and expresly deny that the legacy shall take effect he cannot after make a good assent thereunto for that election once made must stand peremptory be it refusall to assent or assent Yet quae of this for that the refusall to assent may be checked by sentence or decree in the Spiritual Court or Court of Equity and so an assent be inforced But if the power of assenting be legally lost by the meanes aforesaid viz. disabled I see not how any legall interest can be transferred by that compelled assent howsoever decreed And what is said of a legacy bequeathed to another the same may be understood in case where the bequest is to the executor himselfe and he makes his election to have it as legatee or as executor But if where an Horse is bequeathed to A the executor after the testators death doth ride the horse or use him in the Coach or in the Plough I do not take this to be any such disagreement to the execution of the legacy as that the executor cannot after assent to the legatees having thereof no more though it be somewhat more then where a drinking-cup is bequeathed and the executor after the testators death doth use it to drinke in nay if a lease of land be bequeathed to A and the executor continueth the depasturing of the testators therein yet is not this any disagreement to the execution of the legacie but if this lease-lease-land were let out by the testator from yeare to yeare and the executor dischargeth the tenant and taketh it into his hands at the yeares end this I conceive to be a dis-assent to the legacie and so also perhaps may his taking or distraining for any rent thereupon due after the testators death yet am I not resolute that the dis-assent is so peremptory and unchangeable as the assent remembring the case in King Henry the eight his time where a terme being granted by a lessee conditionally so as the assent of the lessor could be had by such a day though the lessors assent were at one time denied yet
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
in Tithes Advowsons Commons Faires and like things be granted or assigned otherwise then by Deede yet it is cleare that such a state for yeares in any of these may be given by Will as well as a Lease of Land which proves a will to have the force and effect of a Deede Of making a Debtor or Creditor Executor and first of the Debtor made Executor SUppose we then that A. and B. being made Executors the Testator was indebted to A. twenty pounds and B. was indebted to the Testator twenty pounds how doe things stand presently upon death First it is cleere that the debt of B. to the Testator stands in Law extinct this making of him Executor being a Release in Law Therfore let Debtees take heed of making their debters Executors And yet doubtlesse me thinkes suh a debter made Executor should hold himselfe restrained in Conscience from taking benefit thereof if the debt remitted there shall want to satisfie either debt or Legacie of the Testator and I doubt whether a Court of Conscience may not justly so order the Testator being perhaps ignorant of this point in Law that this debt should be released by making the Debtor Executor And what is spoken of making the debtor Executor generally the same is to be understood of making any one of the debtors Executor where there be many joynt debtors and so also where many Executors be made and but one of them is debtor to the Testator for they cannot sue without making him who is the debtor also a plaintiffe which hee cannot doe against himselfe The like Law touching Actions of trespasse or account Yet of old where one made his Bayley one of his Executors together with A. and B. who brought an action of Account against the Bayley in their two names onely Justice Herle held the action well brought This was in the beginning of King Edward the third his time but the contrary hath beene since resolved some also have held that though in the life of this Executor who was a debtor he could not be Sued yet after his death the surviving Executors might sue his Executor but that cannot be as I take it for that the debt was utterly extinct by the making of him Executor as if the Testator had released it to him yea though this Executor dyed before he did ever Administer or prove the Will And like extinguishment of the debt if the Creditor marry with one of the Executors of the debtor yet was there an Action of debt maintained temp Edward 3. By the Husband and Wife against the Husband and other Executors upon an Obligation by the Testator to the Wife before her marriage But if a debtor take Administration of the goods of his Creditor this mee thinkes should not discharge him but that his debt should stand as assetts in his hand because the intestate did no act to free him from the debt The Debtor or Creditor made Executor THis making of the Debtee Executor and so the party who both should pay and be payed the debt giveth him clearely power to pay himselfe before any other if his debt be by Specialty or upon Record Nay some have held that so much of the goods of the Testator shall be altered in property out of the Executor as Executor into him as Creditor but how that can be I cannot see For whether shall it be satisfyed out of the Lease and Chattells reall or personall whether out of the Corne in the Barnes Cattell in the Fields Plate or Housholdstuffe this till some election made by this Debtee Executor cannot be knowne nor shall be effected by any operation of Law preventing the Executors election in taking his satisfaction where and how he will For certainely as an Executor hath election to pay which Creditor he will first so hath he election to pay and satisfie himselfe by what part of the Testators goods he will yet perhaps if there be ready money in the Executors hands there shall be an alteration of the property of so much thereof as was owing by the Testator to the Executor And if there come not to the hands of such Executor sufficient to pay himselfe he may have an Action of debt against th' other Executor or the Heire as by some hath beene conceived yet let it be well advised of whether if he doe Administer at all and specially if he pay himselfe any part he have not thereby barred or disabled his Suite for the Residue But if he refuse to Administer at all it were very unreasonable that he should not be able to sue the other Executors for so a Debtor might by subtilty make his Creditor an Executor with others and take a course that his goods should come onely into the hands of those others so as the Debtor could not pay himselfe and consequently if he could not sue the other Executors he should thus be stripped of his debt by a sleight Quaere if he may bring the action in the name of the other Executors onely the Will being proved in his name as well as in the names of the rest or whether the Action shall be brought in his name also and then he be severed at his owne prayer But against the Heire there is none to joyne with him and him may he sue if he have not Administred as Executor this admitted that the Bond extend to the Heire which without expresse words it doth not though for the Executor it be otherwise Thus having considered of the State of things before and without any Will proved or other act done by Executors wee should now come to the point of proofe but two things pertinent to it are in Order precedent 1. What may be done by or to an Executor before proving of the Will 2. Of Refusall and the things incident thereunto Before probate what may be done by or to Executors AS to this it is cleare that before proving of a Will by the Executor he may seise and take into his hands any of the goods of the Testator yea enter into the house of the Heire if not locked so to doe and to take the specialties of debts and generally he may doe all things which to the Office of an Executor pertaineth except onely bringing of Actions and Prosecution of Suites He may pay debts receive debts make acquittances and Releases of debts due to the Testator and take Leases or acquittances of debts owing by the Testator Yea if before such proving the day incurre for payment upon bond made by or to the Testator payment must be made to or by this Executor though no Will be proved upon like payne of forfeiture as if the Will were proved Also an Executor may before Probate sell or give away any of the goods or Chattells of the Testator And whereas the assent of an Executor is necessary to the setling and Execution of a Legacy as
before hath beene shewed So as if one give me his white Horse or blacke Cow by Will or any other well knowne thing I cannot after his death take it though I come where it is but am punishable by action of trespasse at the Executors suite if he doe not assent yet an Executor before the Will proved may give this assent and it will stand good Yea although he dye after any of these acts done the Will being never proved by him yet doe these Acts so done stand firme and good as I take it Yet as I finde an Executor making his Will and dying before he had proved the Will of his Testator his Executor may not prove both the Wills and so become Executor to both the Testators But in case the goods were after debts paid bequeathed to the Executor his Executor may take Administration of the first Testators goods with the Will annexed as by Doctor Drury was in the late Queenes time declared to be the Law and course of the Court Spirituall to which credit was given by the Judges of our Law and the Court of Star-Chamber for though the Booke doe not mention it to have beene in Star-Chamber it is elsewhere so reported Yea an Executor for goods of the Testator taken from him or a trespasse done upon the Lease Land or a Distrayning or Impounding of goods or Cattell may mainetaine before the Will be proved Actions of Trespasse or replevin or deâ—â—nue for these Actions arise upon the Executors owne possession But before the proving of a Will an Executor cannot mâ—inetaine a suite or action of debt or the like And the reason is for that therein hee must shew forth the Will proved under the seale of the Ordinary And so as I take it must it be if he bring any Action for trespasse done or goods taken in the Testators life time so as the Testator himselfe was intitled to the Action and it growes not upon the Executors possession I finde that an Executor granting the next avoydance of a Church which to him came from the Testator the Grantee mainetained a Quare impedit without shewing forth the Will But the Executor himselfe might so have done as of his owne possession before the Will proved and so without shewing it under the seale of the Spirituall Court as well as Actions of Trespasse or Replevin for goods taken after the death of the Testator yet in the Principall case of Greysbrooke and Foxe which was an Action of Detinue by the Executor for goods taken or detained after the Testators death the Plaintiffe did shew forth the Will proved But that proves not any necessity thereof or that if the Will had not beene proved it could be no hurt to shew it forth so upon his own contract for the Testators goods as if the Executor sell Cattell or other goods of the Testator before the Will proved hee may for the money payable mainetaine an action of debt before he have proved any Wil and in this and the action of Trespasse there is no necessity of naming him Executor Also on th' other side an Executor may well enough be sued for debts of the Testator before the Will be proved for he may not by his owne Act of delaying the Probate of the Will keepe off Suites except he will refuse in due manner that so Administration being granted there may be some body Suable by the Testators Creditors for debts by him oweing And the usuall plea of the Defendant to estrange himselfe from the Testament is to say that he neither is Executor nor hath Administred as Executor So as if he either be Executor De jure or De facto by his owne act of Administring it sufficeth Of refusall to prove the Will and therein of Administration forecluding refusall NOw touching this other point fit to be thought of before wee meddle with the Probate viz Refusall to prove we will thereabout consider these severall parts viz. First how and in what manner refusall may or must be Secondly in what Cases or in respect of what acts one named Executor hath lost or determined his election of refusall or acceptance Thirdly of what effect and operation the refusall is what difference where all the Executors refuse and where but some or one of them Fourthly what relation it hath Now touching the first the Ordinary before committing Administration where a Will is made and Executors named if hee know of it must send out Proces against the Executors to come in and prove it and if they doe not come they are to be excommunicate but if they doe come if they nor any of them will prove by reason of such refusall the Ordinary may commit Administration perhaps also they may be appointed Executors at a time future and not presently Now refusall cannot be verbally or by word but it must be by some act entred or recorded in the Spirituall Court and therefore must be done before some Judge Spirituall and not before Neighbours in the Country for that is not effectuall Yet Sir Ralph Rowlett making the Lord Keeper Bacon Catlin Chiefe Justice and the Master of the Rolles Executors they wrote a Letter to the Ordinary that they could not attend the Executorship and therefore wished him to commit Administration who did so making every of their Refusall and this was held good So as a Lease being by that will bequeathed to Catlin and he after this refusall entring and assigning it to one and the Administrator assigning it to another it came in question betweene them whether had best right and Judgement was given for the assignee of the Administrator against Catlins assignee whereas if the Refusall had beene void Catlin had continued Executor and so his title had beene better First in case the Ordinary himselfe be made Executor there saith the Booke hee may refuse before his Commissary and so was it there pleaded for the Arch-Bishop of Canterbury who was made Executor to Sir William Oldhalle What shall be such a medling or Administring by an Executor that he cannot refuse after AS to the second where an Executor hath Administred he cannot afterwards refuse because he hath already accepted of the Executorship and so determined his election at least the Ordinary ought not to accept of such refusall but should compell him to take upon him the Executorship as the Law was taken both in the time of Ed. 4. and of Queen Elizabeth Yet if the Ordinary doe admit one to refuse notwithstanding that he have Administred this standeth good as it seemeth conceived by the Judges in the time of Hen. 6. for there the Executor commanded one to take goods of the Testator out of the hands of I. S. who did accordingly and afterward the Executor refused before the Ordinary and Administration was committed to the said I. S. who brought an action of trespasse against the party so taking the goods from
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
shall be assetts to charge the Executor So also of Actions of Detinue and of covenant for any thing personall or any Chattell Reall Lease Wardship or the like But perhaps some will doubt of Covenant touching Inheritance viz. the assurance of Lands or enjoying thereof free from this or that incumbrance or the like Yet even in those cases if the Covenant were broken in the Testators life time I thinke clearely the Action is accrued to the Executor for that his Testator was to recover dammages in the Action of Covenant for that breach and he being intituled to these dammages as principall and not any accessary thing in that action the Law hath cast that action upon the Executor And that is the cause why if waste be committed in the life of the Lessor by his Lessee and then the Lessor dyeth his Heire can have no Action for this waste viz. because he cannot recover the treble dammage as neither can the Executor have it for that he cannot recover locum vastatum the place wasted the Inheritance whereof is in the Heire That an Executor at the Common Law could not maintaine an Action of trespasse for goods of his Testator taken away in his life time seemes to be implyed by the Statutē in the time of King Edward the third Which gives such action Yet it seemes that a Replevin was mainetaineable by the Executor at lest in some cases for goods taken or distrayned in the Testators life time But in case the distresse were for Rent Service it is said a little after the making of that Statute that the Lord may not now avow for his Rent or Service because his Tenant is dead but must set forth the matter and thereupon justifie to excuse himselfe from answering dammages and the Executor shall by this Action recover the Cattell or Goods and that by the Common Law saith the Booke though the Statute of Marlebridge had never beene made for that the property remained in the Testator Note it speakes not at all of the said Statute of 4. Edward the 3. But Newton in the time of King Henry the 6. would have it that the Executor in that case should not have a Replevin but an Action of Trespasse grounded upon the said Statute viz. 4. Ed. 3. Which me thinkes cannot be by any meanes by reason of the Statute of Marlebridge cap. 3. Non ideo puniatur dominus c. for the Executor as well as his Testator is thereby restrayned as I thinke from the Action of Trespasse against the Lord. As for that no Avowry can be made upon the Tenant that is now remedyed by a late Statute The other Statute hath beene taken to extend to other things then Goods moveable for where a Church becomming voyd a stranger presented thereunto wrongfully and the Patron dyed it was resolved in the late Queenes time that the Executor might by the equity of the said Statute mainetaine a Quare impedit But whether an Action of Trespasse lyeth for an Executor against him who spoyled the Testators Corne Grasse or Wood growing hath beene questioned but no where resolved to my knowledge I thinke it may lye with some difference First for that the Statute of 4. Edward the 3. doth not onely speake of Goods carryed away as limiting the Law to that trespasse soly and particularly but speakes generally of Trespasse done to Testators and then brings in that particular of goods as one Instance Now there be many cases of instances or ensamples given in acts of Parliament which yet doe not restraine the remedy or purven to that particular or from extending to other cases of like nature Thirdly the Statute speakes of Trespasses remaining unpunished which it meant to redresse But it should still leave many unpunished if it should have no larger extent than to that one singular trespasse of Goods taken away viz. moveables Againe the Testator was clearely intituled to a recovery of dammages for this other trespasse which if he had recovered should have come to his Executor Yea the things themselves all if felled in the Testators life and part though not felled should have come to the Executor therefore also the dammages recoverable in liew thereof out of which recovered the debts and Legacies of the Testator are to be satisfied Besides this Action of Trespasse is a thing severed from the state of the Land so as if the owner thereof had after this trespasse done aliened the Land yet had this Action remained to him as I take it clearely And why not as well as where a Trespasse is done upon the Land of the Lessee and then the terme expires this doubtlesse doth not take away his Action nor his Executors But me thinkes here may be some differences probably taken as first betweene a Trespasse in destroying or taking away Come growing and a trespasse in Grasse or Wood growing for the first being of that nature as that though the Owner had a state of Inheritance in the Land wheron it groweth should have dyed before severance and felling Yet it should have gone to the Executor and not with the Land to the Heire therefore doubtlesse doth the Action for destroying or taking away thereof accrue by the operation of Law to the Executor in liew of the thing taken or destroyed Otherwise perhaps of Wood or Grasse Which by the Owners death should have gone to the Heire and not to the Executor And yet here againe another difference me thinkes may be betwixt Grasse and Grasse viz. betwixt that in Pasture and that in Meddow yearely mowed and turned into Hay not lest to be consumed by the mouthes of beasts as that growing in Pasture For as the Law distinguisheth betweene these Soyles gives precedency to Meddow and makes it waste for a Lessee to Plough it up not so for Pasture Yea Tithe is payed of Hay but not of Grasse growing in Pastures so the Meddow Grasse being in the Owners purpose and intention as a thing severed from the soyle should mee thinkes so be also in the eye and estimation of the Law and therefore stand in a different state and account from Pasture Grasse A third difference may be in the manner of the Trespasse viz. Where the Meddow Grasse is eaten up with Cattell by a Trespasser and where by him mowed and carryed away as Hay for in this latter case an Action of Trover and Conversion for so many loades of Hay is doubtlesse maintainable by the Executor though it should be admitted that in the other case of consumption by the mouthes of beasts without severance no action should be maintainable by the Executor which yet I admit not but thinke the contrary probable For when Meddow ground which yearely conceiveth Sol sine homine generat herbam shall be ready to be delivered of her burthen if a stranger putting in an head of Cattell which swallow up and tread downe this fruit of her wombe before the Mower
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
Things accrued by Covenant or Assumption IF A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be in him as Executor and consequently as Assets This is proved by the Judgement in the Case betweene Chapman and Dalton in the late Queenes time Yet I confesse that it is not expressed in the resolution of this Case that this Lease should be Assets but that the Executors should have the Terme as Executors which implyeth as much in my understanding and the declaration whereupon the Defendant demurreth sets forth the breach of that Covenant to be in retardatione executioâ—is testament so as the dammages thereupon recovered viz. 300 and 30. pound were Assets and consequentâ—y also should the terme have beene in â—ew and recompence whereof these dammages were given The like Law if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Mault or so many loades of Coales or Wood or any other Wares or Marchandise and this is not performed in the life of B. but after to his Executor it shall be to him as Executor and shall be Assets in his hands as well as the money recovered in dammages for not performing should have bene Of things accrued by remainder or increase IF a Lease be made to one for life the remainder to his Executors for yeares and he dieth this will be Assets in the hands of his Executors though it were never in the Testator as was in the later end of the late Queenes time resolved by three Justices the Lord Anderson onely being of a contrary opinion and there it was said that Cranmers Case wherein the contrary in effect was resolved was of little authority for that there were first two Judges against two till after Mounson changed his opinion upon a conceit that there the estate was by way of use which could make no difference like law where a Lease for yeares is by Will bequeathed to A. for life and after to B. who dieth before A. Although B. never had this terme in him so as that he could grant or dispose it yet shall it rest in his Executor as his goods and be Assets As for a remainder for yeares so in the Testator that hee might grant or dispose it at his pleasure no doubt can be thereof though the same fell not in possession to the Testator in his life time yet no scruple nor doubt can be but that this is Assets to the Executor even whilst it continues a remainder and before it falleth into possession because it is presently valuable and vendible Nor much of other nature to these are the Cases where the Executor Marchandizing with the goods of his Testator maketh gaine thereof So if the Sheepe or other Cattell of the Testator doe breed viz. beare Lambs Calves Colts c. after the Testators death even these which were never in the Testator shall yet be Assets and so the Wooll growing upon the Sheepe after the Testators death But there is one Case worth the consideration and worthy of some doubt as I thinke and that is this One leaveth to his Executor a Lease for yeares of Land worth twenty pound by yeare and the Executor keeping this in his owne hands one yeare after the Testators death doth make thereof thirty pound in cleare gaine above all charges now whether as to a Creditor this whole thirty pound shall be Assets or onely twenty pound and the Case simply thus put shall be understood of an occupying and manuring without any stocke of the Testators and then if the Executor did stocke it with his owne Sheepe or other Cattell as he must have borne the losse by rot or death so is it reason that if the manurants prove gainefull he reape the fruits thereof in recompence of his adventure and of his industry skill and good husbandry But if the Testators stocke of Sheepe and Cattell were as of necessitie or for the better advantage of the Testators estate continued upon the Lease Land then is it reason that the gaine or losse whethersoever of them God sendeth doe redound to the Testators estate Like Law as I thinke if an Executor finding that he cannot instantly after the Testators death let the Lease Land neare the value shall therefore buy seede-Corne and hire the plowing c. But it may be said that the Lease hath one entire valuation at the first upon the appraisement To this I answer first that the value upon the appraisement is not binding nor much respected at the Common Law if it be too high it shall not prejudice the Executor if too low shall not advantage him but the very value found by Jury when it comes in question whether the Executor have fully administred or have Assets or not is that which is binding Next I say that if a long Lease come to Executors of Land worth an hundred pound by yeare and no sale is made thereof by the space of a yeare or more now the terme continuing of the like value as at first it is no reason but this hundred pound raised the first yeare should goe towards the payment of debts and Legacies rather then any of them should be unpaid This thing I meane the knowledge of them are usefull two wayes viz. First to give light to Executors to discerne what unto them of right pertaines Next to shew unto Creditors and Legatees what and how farre things shall be Assets that is to say goods to enable charge and binde Executors to pay debts and Legacies For whatsoever any of these wayes commeth to the Executors from their Testator or is recovered by any of these Actions shall be in their hands Assetts the Cost and charges of recovering deducted CHAP. VII What manner of Interest an Executor hath in his Testators Goods and Chattels and how different from the common Interest they or others have in their owne proper goods THe Interest which an Executor hath as Executor in the Goods of his Testator is much different from the absolute proper and ordinary Interest which every one hath in his owne prope Goods as may well appeare in and by these points 1. Although if a stranger take away these Goods the Action of Trespasse for the Executor is of generall forme Quare bona sua cepit calling them his Goods whereas a man Outlawed in Debt c. or convict or attainted of felony or treason forfeiteth all his owne Goods yet these which he hath as Executor shall not be forfeited If a Villen be made Executor his Lord cannot take these goods though he may take all the Villens owne Goods and for taking such Goods or for a debt due to the Testator a Villen may sue his Lord. Nay if the Executor grant all his Goods some good
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
shall account the release of him severed is a good discharge to the Defendant as was resolved 48. Ed. 3. 14 15. but this is not a plenary judgement for nothing is recovered thereby but another judgement is to be had after the account which may be against the Plaintiffe so as this release came before any debt or duty adjudged What if the Defendant be had in execution at the suite of the Executor who prosecutes it and escapeth whether may the severed Executor discharge the Sheriffe or Jaylor by a Release I thinke he may not By that above it is plaine that if any one of the Executors Plaintiffes dye the Writ is abated onely where he so dying was before severed opinions have beene different as above appeares So also is it if one of the Defendants Execntors dye Yea if the Plaintiffe Creditor sue A. B. C. as Execuâ—ors where onely A and B. are Executors there by the death of C. the Writ abates or falles to the ground yet A. and B. as I thinke might have pleaded in abatement that they onely were executors traversing that C. was not Executor but the Booke doth not so resolve See 46. E 3 f. 9. 10. As A. and B. above might admit that Writ against them and C. So if the Writ or suiâ—e had beene against A. onely and he so admit it not pleading in abatement the recovery against him alone is good 9. E. 4. 12. One that is Out-lawed or attainted in his owne person may yet sue as Executor because this suite is in anothers right viz. the Testators But he that is excommunicate cannot proceed in suite as Executor because none can converse with him without being excommunicate as a Booke sayes Yet doth not this excommunication pleaded abate or overthrow the suite but make that the Defendant may stay from answering his suite untill the Plaintiffe be absolved and discharged from his excommunication CHAP. X. Of the Possession of Executors or their actuall Having 1. What shall be said so to come to their hands as to charge them 2. What shall be such a getting or going from them as to excuse them WE have before considered what things shall come to Executors and being come shall be Assets in their hands Now for that it is said in Reedes Case that an Executor shall not be charged with or in respect of any other goods than those which come to his hands after his taking upon him the charge of the Executorship Let us now examine what shall be said and accounted such a full and compleate comming to the hands of Executors as shall make them within the reach and charge of Creditors and Legatees viz. For the payment of debts and Legacies As touching debts due to the Testator it hath before beene shewed that untill Judgement and execution had they bee not Assets in the Executors hands Now then as touching other goods or chattels possessory which are of two kindes viz. reall and personall Let us put the Case thus The Testator at the time of his death hath a flocke of sheepe in Comberland Corne in the Barnes in Cornewall Bullockes in Wales fat Oxen in Buckâ—shâ—re Money Household-stuffe and Plate in London a Lease for yeares in Norfolke and his Executor dwelt at Coventry viz. farre from all these places what kinde of possession shall the Law judge this Executor to have in every of these instantly upon the Testators death and before he come where any of the things be either to see or seize upon themâ— In all the particulars above mentioned the Law is all one except the Case of the Lease for yeares which if it be of Land as is most usuall then because it is a setled and immoveable thing the Law doth not reach to it the foote of the Executor to put him in actuall possession for Possessio est quasi pediâ— positio untill himselfe or some for him do actually enter therupon Nor indeed need the Law helpe oâ— supply the want of actuall possession in this Case as in the case of moveables since Land cannot be carried away as goods may and therefore is not subject to purloyning or imbesilment as moveables are But if the Lease for yeares were of Tithes the Executor though in never so remote a place from them shall be instantly upon the seâ—ting out thereoâ— in actuall possession of them so as he may mainetaine an action of Trespasse against any stranger which shall take the Tythes set ouâ— though he nor any for him did ever befoâ—e pâ—ssesse any of the said Tythes or came neere unto them But if the case were of a Lease for yeares of a Rectâ—ry consisting not onely of Tythes but also of Gleabe Lands into which entry may be made as also Livery of season in it then it may perhaps be some question whether such an actuall possession in Tythes shall be given by the Law to an Executor neglecting to enter or not entrying into the Gleabe Land And so I leave the consideration of Chattells Reall Touching things Personall in which the Executor hath such an actuall possession presently upon the Testators death as that he may mainetaine an action of Trespasse against any stranger taking them away or spoyling them though he nor any for him ever came neere them whether yet this shall be such a possession in the Executors and such a comming of these Goods to their hands as to charge them with payment of debts and Legacies yea to make their owne Goods lyable instead of these is a point worthy of consideration And doubtlesse this throughly sifted will prove a case mischievous whether way soever the Law be taken for first it must be admitted that without the Executors laying his hands actually and particularly upon the Goods in the House or Fields of the Testator whether the Executor hath resorted he shall be said so in possession as to stand lyable unto the Creditors so farre as they extend in value though after others purloyne or imbesill them Now then if distance of place shall make difference where shall be the bound and limit of that distance and if the Executor may come at a strangers taking or possessing of the Goods it is mischievous to Creditors On the other side if it shall be said upon the Executors to answer for all the Goods whereof the Testator dyed possessed it will be mischievous for them and deterre them from taking Executorship upon them fince much purloyning may be even of money Iewells and Goods by Servants and others about the Testator or where these things be I thinke therefore that if without any fraud collusion or voluntary conniving on the part of the Executors they be prevented by others of laying hold on the Testators Goods so as that they may dispose of them especially if it cannot be knowne by whom they are so purloyned and imbesilled or if they be persons fled or insolvent that then
no remedy appeareth for the Conusee to have execution of the Goods of the Conusor but onely of his Lands If this should be thus it were a very mischievous case for many bound in Statutes have no Lands but Leases and goods of great value and if by their death their Goods and Chattells should be set free from this Statute and the Creditor without remedy the Law were very defective and it were so much the more strange in this Case because the Statutes of Actoâ— Burnell and Mercatoribus seeme to pitch principally upon Goods and to tend unto assurance betweene Merchants who usually are not Landed men But that the Law doth give remedy in such Case as well against the Goods as Lands of the deceased Conusor appeares by the resolution of late made in what Order and Precedence Statutes are to be satisfyed by Executors as after wee shall see Of Debts by Contract without Deed as Leases Paroll c. COntracts are of diverse kindes and we will begin with those in the realty as most worthy If therefore one be Lessee for yeares or for life without any Indenture or Deede as he may be and his Rent being behinde he dyeth now is the Executor lyable to the payment of this Rent without any Specialty for that his Testator if he had beene sued in his life time could not have waged his Law But if the Lessâ—e for yeares in his life time sell or grant away his terme or Lease although he still lye at the stake for the Rent to grow due after untill the â—essor accept the Assignee for his Tenant Yet if the Lessee dye his Executor shall not be charged for any Rent due after the death of his Testator But what if the Lessee doe not Alien or assigne his terme but dye thereof possessed and the Executor perceiving the Land not to be worth the Rent Waiveth the same Yet the Lessor will not enter thereinto nor intermedle therewith whether may he yet charge the Executor with the Rent during the terme I answer that if he have assets that is sufficient for payment of this and other debts he cannot Waive this Lease but shall be tyed to answer this rent though much more then the Land is worth for the taking of the Lease is much of the nature of an Obligation to pay money Yet because it is yearely Executory the Executor may Waive it in case his Testators estate will not supply and beare that losse But what if there be assets to beare this yearely losse for some yeares but not during the whole terme I think in this case the Executor must pay the Rent so long as this Assets will hold out and then must Waive the possession giving notice to the Reversioner and this I thinke he may doe well enough notwithstanding his Occupation of the Land divers yeares after the Testators death because that was not voluntary but as of necessity yet this I leave as a Quaere to be well advised of with good counsell Of contracts personall VVHere the Testator might wage his Law there the Action lyeth not against the Executor as hath beene touched and therefore he is not chargeable in an action of debt upon a simple contract as by reason of this or that to his Testator yea though it were the Inheritance of Land which was sold so as the sale were without Deed or though by Deed yet if no counterpart were under the hand of him to whom the sale was made And the custome of London to the contrary viz. that an Action of debt should be maintained against Executors upon a contract was held void at least no Good plea against other Creditors that such a debt was recovered against the Executor or paid by him as was towards the latter end of the late Queenes time resolved though in the beginning of her time it was a demurrer Yea though such a debt grew for the most necessary thing viz. meate and drinke which bindeth even an Infant to payment yet will it not charge the Executor of a man of full age but this is meant where the contract was onely by Word for where the Testator putteth his Seale to any Deede or Writing made upon such sale this is more then a simple Contract and taketh from the Vendee his wager of Law and so chargeth the Executor But if the Testator seale but unto a tayle or tally with scotches expressing a deâ—t this is no such Specialty as shall chaâ—ge Executors Yet in some Cases without any seale at all the Executor is chargeable But although no Action of debt lyeth against the Executor upon such a simple contract yet may the Creditor in that case maintaine an Action upon the Case grounded upon the assumption implyed though not expressed as now standeth resolved by all the Judges of all Courts at Westminster though heretofore there hath beene much difference of opinion thereabout And indeed thus the Executor is charged in matter for a simple contract though not in manner of a Debt but as for breach of promise making recompence in dammages instead of the debt And the chiefe reason for it is because the Testator could not have waged his Law in this action upon the case against himselfe though in debt he might Where the Testator retaineth servants in Husbandry or otherwise and dyeth there being wages due to these so retained the Executor is lyable to an action of debt for the same by reason that the parties were compellable by Statute thus to serve and therefore the Testator could not have waged his Law but in case of Servants not compellable as Wayters or Servingmen as wee call them no action of debt lyeth against the Executor for their wages though against the Testator himselfe it doth for the Contract is sufficient to charge him who made it See of account after Where Executors shall be charged without either Contract or Specialâ—y VVHere a Prisoner oweth money to a Jaylor or Keeper of Prison for his dyet or victualls and dyeth his Executor shall be chargeable for this debt because it is for the Common wealth to have Prisoners kept which cannot be without affording them victualls Also where one hath a Pattent or Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Crowne and delivereth it to him he then having money of the Kings in his hands if he pay not the same but dye his Executor shall stand chargeable with the payment thereof So for Arrerages of Account before Auditors if more then one but this is debt of Record in Law So if any Lord of free Tenants doth levy ayde of them for the marriage of his eldest Daughter and he dye before she be marryed she may recover this money by an action of debt against his Executor but
this is by vertue of a Statute There is a president in the Booke of Entries of an Action of debt against the Executor of an Heire by which it seemes that a man binding himselfe and his Heires and leaving Assets the Heire taking the profit becomes so a debtor that his Executor shall be charged And in the Register there is a Writ against the Executors of the Guardian of the Spiritualties of the Arch-Bishop of Yorke for the debt of B. who dyed Intestate and whose Goods came to the hands of the said Guardian viz. the Deane of Yorke In allowance whereof there is a note added of the like Writ brought in K. R. 2. his time and that then a president was alledged of such a Writ in King Ed. 2. his time against the Executors of an Ordinary and that they were inforced to answer unto it So is the opinion of Trew in the time of Edward the third But Ald. opposeth him Also the Rationabile parte bonorum by custome in some places is maintaineable for the Wife and Children against the Executor But no action of account lyeth against Executors except for the King More hereof tit wrong Of Covenants charging Executors VVE have already touched upon Covenants in part viz. where they be expressely for payment of money shewing them to be in Law bonds that is Writings Obligatory whereupon an action of debt may be brought as well as an Action of Covenant though the words of the Deed beare the sound and phrase of a Covenant Yet in some Cases no action of debt lyeth upon a Covenant to pay money as if A. Covenant that his Executor shall within a yeare or such a time after his death pay ten pound to B. now for that no action of debt was maintaineable against A. himselfe it lyeth not against his Executor but onely an action of Covenant as was held in the late Queenes time So if the Covenant be conditionall as thus that if C. doe not pay to B. ten pound then A. will pay it and so also perhaps if the Covenant be in the distinctive viz. to doe such an act or to pay ten pound now if the act be not done yet no action of debt lyeth for the money but onely an action of Covenant But now let us come to the Cases of meere Covenants and see which of them will charge an Executor and which not If a Lessee for yeares covenants to repaire the buildings or to pay the Quit-rents issuing out of the Land let there is little doubt but the Executor to whom the terme commeth must as well as his Testator performe that Covenant although he did not covenant for him and his Executors and yet of these cases doubt hath beene and touching the latter viz. of paying Quit-rents divers Justices in Queene Maries time were of opinion that it was a thing so personall that it dyed with the person and did not charge the Executors Nor is there any contrary opinion expressed in the Booke And since that time viz. towards the end of Queene Elizabeths raigne in the Action of Covenant betweene the Deane and Canons of Windsor and Hide touching reparations at the first much opinion was that onely the person Covenanting was tyed to this performance but after it was resolved that that Covenant did runne with the estate and so both Executor and Assignee bound to performance but in that case it was said by Popham Chiefe Justice that if the Covenant had beene to doe a Collatterall act neither the Executor nor the Assignee had beene tyed thereby and therefore where a Lessee for yeares covenants within such a time to build a new house upon the Land and dyes before that time expired I doubt whether the Executor be bound to performe this or not although it doe concerne the Land let so as perhaps the Rent or Fine was the lesse in respect of this charge of new structure or building which is a great reason that the Executor though not named should be tyed to the performance But if the Covenant had been to build a house elsewhere then upon the Land let or to doe any other collaterall thing not pertinent to the Land lâ—t it is cleere the Executors were named to performe it and yet in those cases if there were a breach or non-performance in the Teâ—stators life time as that the time of performance were expired before his death then it is cleere the Executors were bound to yeeld recompence by way of dammages recoverable in an action of Covenant as both Shelley and Fâ—tzherbert agreed and so also did the Lord Popham agree in the said case of Hide as I find in my owne report of that Case though in the Lord Cooke reporting onely the point in question that be not mentioned Now let us consider of the case where there is no expresse Covenant at al so much as for the Lessor himselfe but onely a Covenant implyed or Covenant in Law as we call it As if Lessee for life make a Lease for yeares and dye within the terme so as the Lessee is evicted by him in reversion or remainder In this case it was resolved in the late Queenes time by three Justices viz. Walsh Browne and Dyer that by this Covenant in Law the Executors were not chargeable and in the same case the Lord Dyer sets downe another resolution after to the same effect but Master Serjeant Bendloes reporting this latter case to be of a Lease made by Tenant in tayle viz. before the Statute of 32. Henry 8. or not warrantable by it sets downe the opinion contrarily viz. that the action was mainetaineable against the Executor This may serve for instance the like being in any other case where the Lessor hath not a good and a firme title but perhaps subject to a Condition or other eviction so as the Lessee cannot injoy the Land according to his Lease But this must be so understood that no eviction or breach of Covenant is in the life of the Testator himselfe for if that be there is no question but the Executor stands chargeable and therefore if one make a Lease of Land by Deed wherein he hath nothing this Covenant is perhaps presently broken and though the Lessor dye before an action of Covenant brought it will be mainetaineable against his Executor though no expresse Covenant This is usefull to be knowne though in these dayes there be few Leases so made without expresse Covenant and the Executors also named And where there is a speciall Covenant in expresse words it doth qualifie the Covenant implyed so as although Words of demise and grant tye the Lessor to a generall Warranty of the title against all men yet it being after covenanted that the Lessee shall enjoy against the Lessor and his Heires or against all claiming under him or his Ancestors Now no eviction by or under any other title giveth cause of Action or
debts should thus be preferred before any subjects viz. for that the treasure Royall is not only for sustentation maintaining of the Kings household but also for publick services as the warres c as appeares by the statute 10. Rich. 2. cap. 1. And therefore it is as I conceive that Bracton saith of the treasures or revenues Royall Roborant coronam they doe strengthen or uphold the Crowne And for the like reason as I think did God inact touching the possessions of the Crown that if they were given to any other then the Kings owne Children they should revert and come back to the Crowne the next Jubilee which was once in fifty yeares sed de hoc satis But this priority of paiment of the Kings debt before the debt of any subject is to be understood onely of debts by or upon record due to the King and not of other debts If any ask how the King should have any debts which shall not be of record since by the statute 33. of King Hen. 8. cap. 39. it is inacted that all Obligations and specialties taken to the use of the King shall be of the same nature as a statute staple To this I answer that there may be summes of money due to the King upon wood sales or sales of Tinne or other his minerals for which no specialty is given so also of amersements in his Courts Baron or Courts of his Honours which be not Courts of record The like of fines for coppyhold states there So of the money for which straies within the Kings Mannors or liberties are sold Also as the law hath lately beene taken and ruled in the Exchequer even debts by contract due to any subject are by his outlawry or attainder forfeitable to the Crowne Yet neither these nor those due to such person outlawed or attainted by bond bill or for arrerage of rent upon lease is or can be any debt of record untill office thereupon found for although the outlawry or attainder be upon record yet doth it not appeare by any record before office found that any such debt was due to the person outlawed or attainted Thus are not these debts to the Crowne to have priority of payment before the subjects debts though the Kings debts of record are so to have so that if a subject to whom the testator was indebted by specialty sue for this debt the executor must pleade that the testator dyed indebted thus much to the King by record more then which he left not goods to satisfie if the truth of the case so be for if there be sufficient to satisfie both then the subject creditor is not to stay for his debt till the Kings debt be levied And if the subject creditor sue execution upon a statute so that the executor hath no day in Court to pleade this debt to the King then is the executor put to an audita querela wherein he must set forth that matter and so provide for his owne indempnity But what shall we say of arrerages of rent due to the King surely where it is a feefarme rent or other rent of inheritance I see not how it can come under the title of debt since for it no action of debt is maintainable so long as the state continueth in him to whom it grew due and I find that the Lo. Dyar M. 14. Eliz. said that the King could but onely distraine for his rents and not otherwise levie them of lands or goods and that the King by his Prerogative may distraine in any other lands of his tenant our bookes tell us but no more Yet I know it hath beene otherwise done of late in the Exchequer which if it have beene the ancient and frequent use of the Exchequer it will stand as law though unknowne to the Lo. Dyar Now rent upon a lease for yeares differeth from the other since for the arrerages thereof an action of debt lyeth but how can either of these be debts of record when the not payment may be either in the Court of Exchequer or to the receiver generall or particular how then can there be any certain record of the not payment so as to make any certain debt upon record Wee know statutes have beene made to make the lands of receivers subject to sale for satisfaction to the Crown and besides that some ancient Patents direct the payment of Fee-farmes into the hands of Sheriffes the statute of Westm 1. cap. 19. provides remedy for the King against Sheriffes not answering the debts of the Crown by them received so as the Kings Farmer or debtor may have paid his rent or other debt and the Crowne have not yet received it Of Fines and amercements in the Kings Courts of Record there is no doubt but they are debts of record Come we now to the debts of subjects and first those of record touching which I shall not be able to hold so good a method and so well to handle things by parts as I would for that the parts so stand in competition one with another for precedencie as that they must of necessity thereabout conflict and interplead one with the other and contest one against the other yet for the Readers better ease and ability to finde out that which may concerne him in his particular case I will in the best sort I can single out these things into severall parts and place them in severall roomes or stations First considering how it shall stand between one judgement and another had either against the executor or testator Secondly how betweene judgements and statutes or recognizances Thirdly how betweene recognizances and statutes Fourthly how betweene one recognizance and another Fifthly how betweene one statute and another adding to each some observations incident Now next to the debts of the Crown are judgements or debts recovered against the testator to have priority or precedencie in payment as being of an higher nature or more dignity than any other for that statutes and recognizances though they make debts upon record yet are they begotten but by voluntary consent of parties whereas in every judgement there hath beene a course and work of Justice against the will of the defendant as is presumed and this in a court of justice and the records of such judgements are entred in publike rolls not kept or carried in pockets or boxes as statutes and untill inrolment recognizances are Therefore executors must take heed that judgements against their testators before debts any other way if they have not sufficient for both be first satisfied lest they draw the burthen of this debt upon their owne backs Now their way to help themselves being sued or pursued for other debts is the same before delivered touching debts upon record to the Crowne viz. by plea where they may plead as in Sâ—ire facias upon a recognizance or suit upon band and by Aâ—dita querela where they cannot plead as when execution is sued
the Land it will then bee haâ—d that the Executor shall for this winter proffit pay the rent out of his owne purse especiallie if the whole yeeres rent bee payable at that one day as in some cases it is or if the whole yeeres proffits were taken in the summer as in case of a lease of tithes it is so also of medow grounds usually drowned in the winter So if the lease bee then to end not having a summer halfe yeere to succeede and make amends for the winter or if the winter halfe yeere bee the latter halfe the lease beginning at Lady day so that there is but a summer for each winter following and not any for the winter passed Of like consideration with these is the case of a lease of woods for a rent which being fellable but once in eight or nyne yeeres now if the lessee having made the last sale and felling before his death the Law should cast the rent upon the Executors owne estate for the time future it should lay losse upon him which is against reason and contrary to the nature and disposition of the Law even in this particular As appeares by this that shee enables an Executor to pay himselfe before any debt of equall nature so as shee more tenders an Executors indempnity then any other Creditors therefore I thinke that with and upon the differences above shewed even rent growen due after the testators death may in some cases bee the testators debt payable equally with debts by bond But here I conceive that if the executor were in such case of destitution of assets as might justifie his waiving of a lease over-rented hee then may waive these termes residue because for the future the profits will come short of answering the rent though at the first and so in the totall the profits did exceed the rent And if for want of waiving where he might this rent fall upon him the paiment thereof would be no excuse against another creditor nor as to him be a good administration for Ignorantia juris non excusat This is pertinent to our present consideration which debt may with safety be paid leaving another unpaid and the hazard of executors by ignorance of the Law hath been a principall motive to my writing these Discourses in English Hitherto we have only considered as I think of rents as they be recoverable by action of debt Now let us see if there may not be somewhat different considerations touching distraining for rent and so comming to recover it by avowrie Put wee then the case that an executor hath fully administred in payment of debts by bond and after the lessor or revertioner commeth and distraineth for arrerages of rent due in the testators life can the executor in bar of the avowrie plead fully administred as hee might have done if an action of debt had been brought for these arrerages doubtlesse I think no nothing shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease except the land come to the King upon whose possession no distresse can be taken I think therefore that the executor who paid out of his own purse to the value of this lease for to I intend the case and else could he not have fully administred as in the case was put he should I say have abated in the price and valuation of the lease as well the arrerages of rent as the rent futurely payable both being equally leviable upon the land and if he so have done he is no loser by payment of this arrerage but if trusting to the power of an executor and to the plea of fully administred hee did not so but disbursed in respect of the lease to the full value without such abatement he must beare the losse of his owne ignorance He might also another way have helped himselfe viz. by payment of that arrerage leaving other debts by specialty unpaid And what if suits were presently commensed upon the testators death before hee could make payment of the rent behind whether might the executor then plead this debt for rent as hee might a debt by judgement or statute and surely me thinkes it probable that he might because it is a debt from which hee cannot be freed by payment of the other debts sued for by specialtie If the revertioner would also commence suit before judgement had for the creditor by specialty then might the executor helpe himselfe by confessing his action first but this perhaps the revertioner would not conceive safe for him since that way the others might get judgement before him and so he might lose both his suit and his debt wheras holding himselfe to the course of distres the lease continuing he hath land at the stake for his debt What if he distraine and avow may not now 〈◊〉 executor pay him or at least confesse his â—â—tion or avowry so as he first having judgement may first be satisfied Surely after suite commenced I see not how the creditors by bond can so be prevented at least without judgement had for the rent yea though such a judgement be had yet because the judgment in that case is not that hee shall recover the summe due for rent but only that he shal have a returne to the pound of the cattell distrained for the rent it is questionable whether the paiment thereupon of the rent shall prevent the judgements after had in the suits upon bonds But I thinke it shall because although it bee not an expresse recovery of the rent yet is it such a judgement compulsary for the same as makes the payment inevitable and of necessitie And where before we have made the question only between the said rent-debt and the debt by obligation let us now put the case between the rent-debt and the debt by statute or judgement If then the lessor after death of the lessee distraine for the rent behind part of the testators cattell and after there comes a writ of execution upon a judgement or statute of the testators whether shall these beasts in the pound for rent be delivered in executioÌ„ or not admitting that without them there be not goods sufficient for satisfaction of the judgement or statute And surely I thinke they cannot be delivered in execution First for that they are in the custody of the law as in String-fellowes case though there the Kings preroga-time overtopped that point yea so I thinke though they be replevied for that they are to be returned to the pound if judgement passe for the avowant to which purpose securitie is given so as they are but in tâ—e case of a prisoner bailed who still is in some sort in custodie Secondly for that this rent incident to and descendible with the reversion breeds a debt of a reall nature and so of more dignity and worth than debts personall Thirdly for that the land let as in a sort debtor stands chargeable with this distres
hereof they are to be regardfull not only in respect of escaping damage to their owne estates but more especially in respect of an oath which divers of our bookes mention to be taken by executors And in one of the bookes of relations of cases in the twentieth yeare of Hen 7. his time there is an expression of three things whereto the office of an executor tyeth him 1. To doe truly and thereto are they sworn saith this book 2. To be diligent viz. with sedulity to attend the discharge of the trust 3. To do lawfully nor well can this latter be without knowledge what is lawfull or required by the law Now what is formerly said of the right method and order of paiment of debts discovereth in much part how and by what wayes an executor may waste and mispend his testators goods and consequently incurre a devastation and so make his owne goods liable but of that more fully and particularly by it selfe and herein we will consider of these parts 1. What shall be said to be a wasting or devasting and how many wayes that may be done 2. Who shall by this act be charged to yeeld recompence 3. Who shall take the benefit or advantage of it 4. How farre or in what measure the advantage shall be taken 5. What way or by what meanes it shall be had As to the first this wasting is done divers wayes 1. by the executor his plaine palpable and direct giving selling spending or consuming the testators goods after his owne Will leaving debts unpaid 2 By paying what is not to be paid which yet is to be understood where there are debts payable and unpaid 3. By the way formerly discoursed of viz. the not observing the right method and order of payment 4. By assenting to a legatees having a thing bequeathed debts being unpaid 5. By selling goods of the testators at an under value for be the appraisement what it will and let him sell for what he will he must stand charged to the best and utmost value towards the creditors Yet if upon a judgement against the testator or the executor the Sheriffe sell some of the testators goods at an undervalue this is no vastation of the executor for this difference Hody chiefe Baron makes But since an executor may happily prevent this act of the Sheriff by paying the due sum upon sale of the testators goods at the best value or otherwise he is to be blamed to leave it to the cōscience of the Sheriffe or Undersheriffe rather 6. And lastly this may be done to the executors smart by undue viz. not legall discharging of any debt or duty pertaining to the testator that divers wayes requiring heedfulnesse As if an executor upon a bond of two hundred pounds forfeited for payment of a hundred pounds accept the principall or perhaps also some use costs or damage and give a release or acquitall of the whole forfeited bond or of all actions or upon record acknowledge satisfaction upon judgement had This is a wasting of so much as the penall summe is more then is received and so far his owne goods stand liable to creditors not satisfied and so doubtlesse is it if he doe but give up the bond having no judgement upon it though he neither make release nor acknowledge satisfaction But his verball agreement to require or sue for no more or his giving a note of receipt for so much as he hath received or delivering of the bond into a friends hands or into a Court of equity in way of security to the debtor that he shall not be sued for more is no devastation since still the rest in law remaines due and sueable So this sets no more upon the executors score then he received But let him take heed of releasing except he be sure there be no other debts demandable Nor only is there danger in releasing of debts but of trespasses or other causes of action also As if one take away goods from the testator or from his executor If the executor make him a release this is a devastation and makes his owne goods lyable to the whole value of the goods released as appeares by Russels case where the release of an Infant executor to one who had taken and committed to his use Jewels and goods of the testator being pleaded the release was therefore held void in respect of nonage for that if it should have stood good it had amounted to a Devastavit and made the executors owne goods lyable which his infancy considered had been hard Another way of discharging dangerous to executors is submitting matters of debt or duty or touching goods taken away to arbitrement For if by the award of the arbitrators the debtors or wrong doers bee discharged or acquitted without making full recompence the rest of the value will as to other creditors sit upon the executors skirts because it was their voluntary act thus to submit it to arbitrators Thus may executors fall under prejudice not onely by wilfull wasting or unfaithfull miscarriage wherein they are not to bee pittied but through incogitancy and unskilfulnesse also Nay I may say truly that it is very hard for executors in some cases to walke safely For besides that to finde out all judgements and recognizances by or against their testators is of some difficulty more then for statutes whereof by search in an Office descry may be had yet with this difference that statutes marchant and statutes staple may be and stand effectuall against executors though not inrolled albeit against purchasers of the conusors land they be not of force if neglect be of inrolement within three moneths But where statutes or recognizances lye for performance of covenants upon sale or lease of lands mariage agreements or otherwise how hard is it for executors to know whether any covenant be broken or not how hard to be sure they finde out all bonds bils covenants and articles in writing made and kept by others whereby any money is due and payable before debts by contract or legacies as also all promises or debts by contract payable before legacies For the law hath prescribed no time for their claime and demaund and whether some such thing or meane of publication were not fit to be enacted let the judicious consider To attaine to this knowledge of the testators debts I remember that it is by the Lord Brooke reported that in King Henry the 8 th his time Sir Edmund Knightley being executor to Sir William Spencer made Proclamation in certaine Market Townes that the creditors should come by a certaine day and claime and prove their debts but hee for this was committed to the Fleet and fined For that none may make proclamation saith the book without warrant or authority from the King except Majors and such like Governours of Townes who by priviledge or custome may so doe But the dangers are only where there is not sufficient of the testators goods and chatels to satisfie both
of the testators goods if so much in value of them were in the defendants hands and if not then the costs only of the goods of the executor And this surely is the righter and more just way for there is no reason that upon on a promise more then upon a bond the law should cast the whole debt upon the back and state of the executor But perhaps the two judgements may be reconciled thus the later was given upon a verdict non assumpsit being the issue and there the Iury assessed damages in certain viz. two hundred fifty three pounds with the costs So as here the judgement was compleate and full viz. to recover the said summe but in the other case the judgement was had upon a demurrer so as the damages not being knowne it was generally that the plaintife should recover his damages against the defendant Sed quia nescitur quae damna c. because it appeareth not to the Court what the damages were therefore a writ was awarded to inquire of damages upon the return whereof executed the judgement was fully and compleatly to be given of a summe in certain which second judgement it appeares not by the book in what manner it was entred and therefore might perhaps bee then agreeable with the other And that the said first judgement before damages inquired of is not a plenary full judgement but an award of judgement hath beene divers times resolved and that therefore any defect and insufficiency in the declaration may be shewed time enough after the first and before the second judgement Yea if the plaintife dye before the second judgement though after the first the action falleth to the ground So if the defendant dye otherwise of death after full judgement But this notwithstanding and howsoever it there were done upon the second judgment me thinks it were righter and fitter that the first judgement should expresse that the damages should be had and levied out of the testators goods for whom and in whose right the executor is sued Another case there is wherein the judgment must be as it seemes against the executors own goods viz. in an action of covenant for a breach of covenāt since the testators death for so was it held both by all the Judges of Common Pleas except the L. Dyar and by the pregnotaries in the late Queenes time where the case was of an house upon the lease negligently burned in the executors time for which damages only were to be recovered And sometimes where the executor himselfe is so to beare the burthen I finde the judgement entred that the summe recovered shall be levied of the lands and goods of the executor Chap. XVII Of women covert Executors THere being two kinde of persons who have some disability upon them viz. Femme coverts or married women and infants touching whom we find in many places question and disceptation in our bookes We will consider of them by themselves or apart from others yet not joyning them together neither but each by himselfe separately First therefore of Femme coverts touching whom we will consider these three things First whether they may make Wills and executors with or without their husbands assent and how where and in what cases Secondly whether they may be made executors without their husbands assent or how their husbands may hinder it Thirdly what acts in execution of the executorship they may doe without their husbands or their husbands without them A woman married or femme covert wee know is Sub potestate viri cui in vita contradicere non potest as saith the writ given by the Law to the wife for recovery of her land after her husbands death being aliened by him Therefore it is that Judges when a woman is to acknowledge a fine of any land doe examine her apart from her husband to know whether she bee willing or come to doe it by the compulsion of her husband It is therefore hard for her to have freedome of will and consequently freedome to make a will Besides all her moveables or goods personall which shee had at the time of her marriage otherwise than as executrix or administratrix are by the Law totally devested out of her and setled in the husband as fully ipso facto upon the very marriage as any other that were his owne before Of these therefore she can make no disposition no more than of other her husbands goods But in case shee doe by will bequeath them although the will and gift be void yet if the husband as the case was in the time of Edw. the second do after his wives death consent to this her will gift by delivering of the goods bequeathed after her death or assenting that the legatee take them by vertue of such will and gift this amounteth to a new gift by the husband If a woman have a lease an estate by extent a wardship the next avoydance of a Church or other chattell reall these are not devested out of her into her husband by marriage but in case she over-live him they continue to her as before no alienation or alteration having been made by the husband who had power to dispose of them by gift in his life-time though not by his will yet such a woman in her husbands life-time could not of or for these things without her husbands assent make an executor or will but she dying before him they would by the operation of law accrue to him And here then observe a case though not frequent yet full of mischief when it happens Suppose that a woman indebted a thousand pounds and having leases and moveable goods to the value of three thousand or foure thousand pounds marrieth with I. S. and then dyeth before the debt bee recovered against her in this case the husband shall have and goe away with all this value of his wife and is not in law lyable to pay one penny of her debts because hee is neither her executor nor administrator What the Chancery could doe or rather what the Lord Chancellor or Lord Keeper would doe in this case I will not take upō me to say or determine Another sort or kind of goods or rather interests a woman may have viz. debts or things in action which as the former are not devested out of her by marriage into her husband nor yet can shee thereof make an executor without her husbands assent although they be one degree farther from the husband than the said chatels realls for that though th◠husband doe overlive the wife he shall not be intitled to them as to the former But if his wife make him executor as she may or if after her death hee take administration of her goods then as he is thereby intitled to them so is he lyable also to pay her debts out of the same when he shall have received them Lastly Dato that a woman covert
might it be yeelded at another so as it were at any time before the day But yet there it was held that if no time of assent were limitted then one expresse deniall or refusall would be peremptory so as the refusall were expressed to the party to whom the assent was to be given otherwise if it were but in speech to or among strangers This and the former case 19. Eliz. give the best light to this point that I remember Now for disablement to assent it was held in the fore-mentioned case of Low and Carter that where a terme is bequeathed to A and after the testators death the executor takes a new lease of the same land for more yeares in possession or to begin presently now by this was the terme left by the testator surrendred and drowned so as it could not passe to A by the executors assent after As to the fifth point viz. in what manner a lease for yeares or other chattell reall may be bequeathed to one for a time with remainder to another it hath been heretofore much doubted when a lease for yeares was bequeathed to one for life or for so many yeares as he should live whether the limitting of a remainder thereof after his decease were of any validity in law or not and this doubt had this ground any state for life in the judgement of law is greater than any terme for yeares therefore when a termer hath by his will given his terme or his house or land which hee so holdeth for yeares to one for life or for so many yeares as he shall live this testator and devisor hath not in the judgment of the law any estate remaining in him and therefore it was thought very hard for him to give or limit a remainder to another But after many arguings and debatings it was in the late Queenes time resolved that such a remainder was good and that if the first devisee died before the terme expired that then he to whom the remainder was limitted might enter and enjoy the residue of the terme As for the giving of part of the years to one and the residue to the other viz. If the terme being twenty yeares the Lessee bequeatheth ten thereof to his wife and the remainder to his daughter Of this no doubt ever was but that it was good for that after the first state limitted there remained a further terme viz. ten yeares more in the Devisor whereof he had power to dispose whereas in the other case after the terme limitted to one for life there remained but a possibility that this life should not take up the whole terme But now put we the case a third way viz. that the termor deviseth or bequeatheth the thing in lease to one child intaile with remainder to another and dieth and the first entreth and dyeth without issue now whether shall the next in remainder or the executor of him so dying have the terme residue and this case came in question and was adjudged about the middle of K. Iohn his reigne in the Exchequer for there Master Hamond holding by lease for yeares from the Crowne the manner of Akers in Kent devised the same by his will to Alexander Hamond his eldest son and the heires males of his body with remainder to Ralfe Hamond another son in like manner and the like remainder to Thomas Hamond and made the said Alexander executor who after his fathers decease elected to take as legatory and after Ralfe Hamond died leaving issue male and making his wife executrix Alexander not having issue male granted the whole terme by deed to B and C. for the behoofe of himselfe and his wife during their lives and after to the use of his yongest daughter whom Sir Robert Lewkenor married then Alexander dying without issue male the wife and Executrix of Ralfe Hammond entred claiming the terme and being kept out sealed a Lease whereupon an Eject firmae was brought and a Jury appearing at the Barre in the Exchequer found a speciall verdict in effect Vt supra And in argument of this Case first the maine question was whether this case were all one in Law with the former where a terme was devised to one for life which remainder over so as by the death of Alexander Hammond without issue male the terme should goe to the next in remainder as in the other Case by the death of the devisee for life dying within the terme it should doe And on the plaintifes part it was urged to bee all one so that by vertue of the Bequeasts supra Alexander had an estate to him and his Executors onely so long as there should bee heires males of his body and hee dying without such issue the terme remained to the Executors of Ralfe who had the remainder in like manner and left issue male which still lived and so that seate of Ralfe yet had continuance For it was admitted by the counsell on that side that the terme could not goe to the issue male of Ralfe according to the words and intent of the will since it was impossible to make a terme to descend without an act of Parlament This therefore they said the Law should worke which was neerest to the intent viz. that after Alexanders death it should goe first to his Executors and assignees so long as issue male of his body doth continue and for want of such issue then to Ralfe his Executors and assignees so long as his issue male should last and therefore in this case the issue male of Alex. failing the executor of Ralfe whose issue male fayleth not should injoy the terme and so judgement ought to be given for the plaintife being lessee of that Executor on the other side it was said by the defendaâ—ts counsell that this Case differeth much from the other Case where the terme or Land held by Lease is given but for life to the first with remainder to another which Case as having beene often resolved was clearely admitted to bee good law for in that case the intent of the Testator might and did take effect But in this case if the land should goe to the Executors and assignees of Ralfe Hammon it must goe against the intent of the Testator whose mind and wil was as it appeares by his word that it should goe onely to the issue male of one sonne after another and not to any Executors Now then since this intent was so contrary to the rules of Law that it could not take effect therefore it must be voyd and so all the words of heires Male standing voyd the Will is to be construed as a sole and absolute gift and bequeast to the said Alex. consequently the terme must goe to his Executors and assignees And for this point resemblance was made to a Case resolved in the Kings-Bench where a Lease was made by indent to A. Habend to A. B. and C. for their lives now because B. and C. could take
in reversion or remainder having the freehold or inheritance should dissolve or destroy this terme residue after the death of the divisee for life so as there the freehold should be discharged thereof But Quae. for I have not knowne this in question As for the other point of Fulses case it was in the said later case of Lampett confirmed and admitted for good law viz. that this possibility of remainder could not be aliened nor conveyed to a stranger Now we are come to the ninth point viz. to examine whether any act of the devisee for life can frustrate or defeate him in the remainder of the terme and whether by the act of God viz. the death of him in the remainder before the first devisee for life shall defeat it As to the first it hath divers times been resolved that no grant made by the first man cut off or defeat the second though formerly it were held otherwise but according to the later resolution was it also held or admitted by all in the said case of Hamoâ—d where was such a grant And as this cannot be done by direct grant or alienation no more can it by an indirect or implyed as by taking of a new lease which is a surrender in law of the old lease no more then by an expresse surrender Nor doubtlesse by outlawry whereby the terme of the first divisee is setled in the Crowne But if we put the case further of waste committed by the tenant for life or breach of condition by not paiment of the rent or otherwise these for the whole in the later case and for the part wasted in the former doe so destroy the lease and put the reversioner in Statu quo prius as that all remainders must needs faile so of a feoffement or other like forfeiture by fine As for the death of him in remainder it was urged in the case of Hamond that since it was but a meere possibility if it could not take effect and become an estate in the life of him to whom it was limitted it could not settle in his executor and to that purpose were cited the case of the Rector of Chedington and more expresly as resolved in the point the case of Price and Atmore But the Court resolved and found former resolutions in other Courts that way that the death of him in remainder did not hinder but that it may settle as well in his executors upon the death of the devisee as it should have done in himselfe if he had overlived the first divisee for life If the lessor enter and levie a fine and the divisee for life enters not nor claimes in five years he in the remainder may enter as having a right futurely accrued In the last place wee intermedled only with Leases bequeathed wherein yet is to be understood that what thereof is spoken is to be extended to and understood of all other chattels reall as wardship of body and lands estates by extent upon statutes or judgements termes otherwise than by lease in faires markets rents annuities commons advowsons and other profits yea one single next avoidance of a Church Now we come to consider of bequests personall principally if not only viz. how such may be forfeited lost or revoked First then we will consider of the acts of the legatee secondly of the acts of God thirdly of the acts of the testator The legatee as from the Civilians I learne may forfeit his legacie by his mis-cariage towards the will as if hee use meanes to have it concealed and kept from being knowne and consequently proved So if he accuse it of falsity So againe if he deface or destroy the will Also if being by the will appointed to be tutor or educator of a child he refuseth so to be so saith Master Swinborne but Silvester Prierius seemes to me opposite in that where he saith Si legatum fuerit aliquid ea conditione ut facias aliquid tale legatum non est conditionale sed modale so as he takes away the force of a condition from words conditionall whereas the other without words conditionall raiseth a condition implied Lastly if the legatee presume too farre upon the strength of of the bequest to him so as he taketh the thing bequeathed without the consent of the executor thus also doth he forfait his legacie saith Master Swinborne unlesse the testator did will and appoint he should so doe The falling into enmity with the testator will be considered of more fitly as I take it among the acts of the testator In the next place let us see what acts of shall God cause a legacy not to take effect first thus If the legatee die before the testator this legacie is lost and his executor shall not have it So also saith Master Swinborne if it be appointed to bee paid after the death of the executor and the legatee dieth before the executor it is lost and so also if he dye before the condition performed saith he Let us come now to time of payment and death before it If there bee a day certaine limitted for payment and the legatee die before that day his executor shall have the legacie contrariwise if the paiment were limitted to be made when the legatee should be married but if it were only expressed to be towards the marriage of the legatee and shee die before marriage her executors shall have it saith Swinborne Now put the case that a legacie is bequeathed to B to be payed when he shall be five and twenty yeares old and B dyeth before that age it shall now be paid to the executor and that presently without staying till B should have been of that age saith Prier Nay saith Swinborne if the words of the will be so viz. when he shall come to such an age then if he die before his executors shall not have it at all but if the bequest be generall and further it is added in the will that the testator would have that legacie paid the legatee at such an age there though he die before such age yet his executors shall have the summe bequeathed The difference may seeme very nice yet happily it wants not some probable colour of reason Now lastly let us come to the testators own act who clearly hath power to revoke or countermand any legacie though he revoke not the rest of the will and here first of revocation presumed If there fall out Graves inimicitiae inter legantem legatarium legatum caducum efficitur saith the Summist Sed non propter leves saith he si graves si tamen redeant ad amicitiam reintegratur legatum that is by grievous enmity after arising and never reconciled between the testator and legatee the legacie is dissolved otherwise of a light breach or falling out though it continue untill the death of the testator This I conceived to be rather fit for this place as
another point which made an end of the case all agreed Yet the better opinion was as I finde in my report that a lease would passe by such words in a will though not in a deed or grant by word otherwise made for that legacies are demandable in the Spirituall Court where bona catalla are taken for all one See also the state of Marlbr giving an action to the successor ad repetenda bona predecess Yet an eject custod hath been maintained thereupon so also upon the stat for executors de bonis asportatis in vita testator hath it beene resolved and where administration is granted it is only omnium bonorum without speaking of chattels yet hath the administrator interest in leases as well as moveables On the other side the stat de prerog reg mentioning only forfeiture de catallis is cleerely extended to moveables so also in the writ of assize de catallis quae in eo capta fuerint and in the writ of execution upon a stat there is only the word catalla and not bona and in the case reported by Kelway temp Henry the 7 th it seems bona catalla were taken for synonyma or all one It doth not appeare that these stat and writs were alleadged or considered of temp Ed. 6. but in Portmans case the most of them were If one will that his wife or any other shall have or hold or enjoy the moiety of his lease with his executor This implyeth not that the executor have the other moity as a legacy also but otherwise as the law casts it upon him no more then where the moiety of fee-simple land is devised to the younger sonne this shall not make the elder sonne to have the other moiety otherwise then by discent as betweene Low and Charter was conceived But there being a Proviso in the wives bequest that if she married from the house then c. Popham cap. Justice held that if she married at all this was a marrying from the house for she was no longer widdow of that house though she married with one of that kindred and who had no other house but would dwell in the bequeathed CAP. XX. Of the Executor of an Executor I Should bee taxed of omission if I should not shew whether the things fore-spoken of Executors immediate extend also to the mediate or more remote Executors Assuredly were I not by the books otherwise informed I should thinke it somewhat strange that the mediate Executor in the fourth fift or further degree should not by the rules of the common Law stand in like plight Executor to the first Testator as the first and immediate Executor aswellas the heire and assignee in the third or thirteenth degree is capable of all advantages in like sort as the first and immediate heire and assignee And indeed wee finde both in the time of Edward the 2. and Edward the 3. Execution sued out upon a judgement and Statute by an Executor of an Executor and why hee might not aswell maintaine an action of debt c. I see not But I must confesse I finde both books to the contrary before any Statute made in the point and after an act of parliament to enable them to bring actions and to make them subject to actions yet the Statute speakes nothing of conferring upon them the Testators goods Now if they had title to them before that Statute and without the helpe of that Statute it is strange if they should not bee suable for debts But since that Statute and at this day where by a will a speciall trust is recommended to an Executor as to sâ—ll land c. This not performed in his life time shall not be performable by his Executor contrariwise of an interest as to take the profits of lands for certaine yeeres towards payment of debts and legacies and where the stat temp H. 8. gives remedy to Executors for recovery of rents of inheritance behind in the Testators life I doubt not but executors of executors are within the equity as well as within the Stat. 9. Ed. 3. cap. 3. that the executor who appeares at the grand distres shall answer alone Yet the statute Westm 2. cap. 23. for executors was taken not to extend to executors of executors Quod non est lex So as now in all cases except of speciall trust or authority without the office of executorship The executor of an executor how farre soever in degree remote stands as to the points both of being having and doing in the same state and plight as the first and immediate executor CAP. XXI Touching Administrators OF these also as standing in much affinity with executors it may bee by some expected that I should have treated But first my excuse is that these of executors onely having growne to so great a bulke above expectation I was unwilling to inlarge it further Secondly that which in the points of having and doing is before set forth and shewed touching executors may bee applied to and understood of administrator sthough not what is spoken of being and unbeing or revocation of executorships and other circumstantiall points Lastly I may perhaps if these finde good acceptance ad ere long that which appertaineth to Administrators distinguished from Executors or wherein they stand in different state CAP. XXII Considerations in conscience touching payment of Debts Legacies and the preferring or respect of persons TO the advertisement what course executors are to hold in their payments I thought good to adde this in foro conscientiae That when as it shall stand in the executors will and election to pay whom he will and as he will in respect of equality in the dignity and degree of the debts all being for the purpose by specialty and none of record and yet he hath not wherewith to pay or satisfie all Here he may have three wayes or courses in his eye First where there is equality in the honesty and conscience of the debts there except in the ability of the paties to beare losse the disproportion may otherwise occasion me thinks it should be most honest and just to pay every one proportionably and to let the losse of every one to be equall and the justnesse of this is taught by the law which gives the audita querela for equall contribution in bearing of losse by them who stand in equall degree so of legacies The poverty and inability of some and the plenty of others may in foro conscientiae justifie the paying more to one and suffering him to lose lesse if any thing then another For as the widowes mite was a greater gift so a greater losse then more out of abundance Where charity findes or may finde place or neernesse to place of giving it may find greater motives of preserving from losse So of legacies The nature of the debts and so sometime of legacies may be so different as
29. Eli. Inter Brooker Carter in Ba. com 9. Ed. 4. 33. The Booke calls him Cardinall of Canterbury 9. Ed. 4. 47. Selling Land as Executor is Admin Dyeâ— in Case of Greisbrooke Foxe Plow com 280. b. Pas 7. Eliz 36. Hâ—n 6. f. 7. 8. Micâ— 27. 28. Eliz 〈◊〉 Case in com 〈…〉 A. being Executor did adminâ—ster and yet would not prove the Will B. tooke Administration and being sued for debt did pleade the matter supra and held a good plea and was found for him before â—ust 〈◊〉 ad Oxâ—n in aestat 1. Carâ—l reg 36. Hen. 6. 7. 20 〈◊〉 4 17. and 21. â— 4 5. 21. Ed. 4. 5. 21. H. 6. 19. 20. 33. H. 6. 31. 8. 1. Eliz. Dy. 166. 13. Ed. 3. Exâ—c 91. 3. 4. Ma. Dy. 135 26. H. 8. 7. 8. 20. H. 7. Kelw. 63. 21. Ed. 4. 5. 20. H 7 f. 5. a. 9. Ed. 4. 12. 13. 33. H. 6. 31. 4. Cooke lib 5. f. 2â— Cont. 18. E. 2. Bre. 8â—7 22. Ed. 3. 19. 15. Ed. 3. Exec. 8. 41. Ed. 3. fol. 〈◊〉 21. Ed. 4. fâ—l 24. 42. Eliz. Co. 9. f. 36 37. 4 5. 〈◊〉 Ma. Dy. â— 69◠〈…〉 2â— â— â— 4. 23. 24. 33. Hen 6. 38. a. 〈◊〉 9. 37. 6. 32. Hen. â— â—25 27. Hen. 8. 11. 〈◊〉 curâ—am 9. Ed. 4. 33. Co. 9. fol. 36. 2. R. 3. Fitzh 4. Co. lib. 9. fol. 43. 11. H. 7. 12. Flow. Coâ— 279. 1 Cor. 4. 2. Acts 20. 27. Vide â—ol proxim If Bona Notabâ—â—â— both in Canterb. and Yorke Canon 92 93. â—1 Eliz. Goods considerable or 〈…〉 Hil. 37. Eliz. M. Comâ— Da. Vide 13. 14. Eliz. Dy. 305. 22. Eliz. 9. Ed. 4. 47 22. Ed. 4. 50. 22. H. 6. 52. Plow Com. 282. 44. Ed. 3. 32. 19. Ass p. 2. Plow Com. 281. a. 283. 18. H. 6. 22. 2. 9. E. 4. 33. 47. Not to make good a Release made before Co. lib. 5. 28. 36. H. 6. 8. 2. Ma. Dy. 110. See also 31. E. 3. cap. 11. An Administr shall account as an Executor Fitzh Ex. 91. and 837. viz. 18. E. 2. tit Briefe 48. E. 3. 14. 15. Of a duty resting in account it is said the Legatee shall have remedy by account in the Spirit Court 81. Ed. 4. f. 3. Moyle 4. H. 7. 15. per Wood. 9. Ed. 4. 47. Dost Stu. 78. b 21. Ed 4. 22. Plow Com. 544. 4. H. 7. 15. Kelw. râ—p 64. a. Temp. E. 1. Assise 〈…〉 37. Ass p. 〈◊〉 4. E. 3. Ass 166. Brâ— Chaâ— 15. â—9 E. 3. 37. So Manwood if granted for life it is but a chattell Plow coâ— 524. 〈…〉 88. Reg. orig f. 102. There is mentione that the prisoner was to have a 190. l. for his ransome Bro. no. ca. 295. tis Property 38 1. H. 6. cap 5. 10. E. 4. 14. 15. Come of wilde ones 22. H. 7. Relw. rep f. 88. 118. co lib. 11. fo 50. 18. H. 8. 2. 10 E. 4. 14. 15. 18. E. 4. 8. So of young Hawkes in the nest It is felony to steale these Ergo. they be goods So an Hunters horne a Falkoners lewer Hares Deere Fesants Partridges wilde Duckes c. are good â—eate Fo. 142. Hen. 8. fol. 3. Rootes of Carrots Parsnips Land sold wherâ—n is ripe Corne For he was Tenant for life in effect The Wife also shall have convenient apparell 33. H. 6. 31. 2. Eliz. Dy. Co lib. 11. f 48. Of Houses or things about the House 42. E. 3. 6. â—1 H. 7. f. 26. 42. F. 3. f 6. H. 37. Fliz. Austins case 〈◊〉 lib. 4. f. 63. 64 Things in Gaâ—dens 〈…〉 2. 36. H. 6. 2â— 18. E. 3. 4. â— H. 7. 15. Quae. If sole use that way make a difference or not See Stat. 〈◊〉 H. 8. cap. 17. Remedy for Rents of Inheritance or for life A Church of the Testators Inher become voyd in his life comes to the Executor as a thing in action but is not Assets for not vendible 11. H. 4. 32. 45. E. 3. 3. 〈◊〉 na br 59. 4. E. â— c. 7. And the like given to Executors of Executors pâ—r 〈◊〉 25. E. 3. c. 5. 17. E. 3. Fit 106 cap. 21. meant 〈…〉 21. H. 6. 1. but 〈…〉 contra 21. H 8. cap 19. 4 E. 3. The B. of Coâ—â—nt â— and Safes case M. 32. 33 Eliz. in com ba. So of Ravishment Dl. gard 7. H. 4. â— 7. H. 4. 6. Erect 〈◊〉 Tild Do â—lauso fracto meerely it lyeth not 11. H. â— 3. This Tâ—riaÌ„ Iust did very judiciâ—â—â—sly urge in Sâ—les case supra At least me thinkes Action upon the case here and before should be maintaineable 3. H. 6. 3. Litleton fo 42. a. So held in Sales case of dammages in Qua. impe recovered conte of the presentment Releasing 13. Ed. 3. 〈◊〉 9â— Error 1â— H. 4. 65. 46. E. 23. Yet upon a verdict in Qua. imp the Wife not the Executor of Husband did seise 9. H. 6. c. 4. Or if a strange usurpe in his life and he dying his Executor recovers in a Qua. imp as by Sale was done infra Mich. 32. and 33. Eliz. So held in Sales Case in com ba. Vende◠〈◊〉 pâ—test emerat ipse prius 22. H. 8. 〈◊〉 Villenage 46. If he dye how shall this be Assets in the heire 3. H. 63. and so 2. Hen. 4. 21. If by Feoffment per Markam cap. Iâ—st contr Rickâ—ill See 9. El. Dy. 264 9. H. D. 264. 14. H. D. 31â— Note Diff. â—1 Hen. 7. Plowd Com. 11. H. 6 35. per Babington 24. E. 3. f. 35. 32. H. 6. 34. â—itl tit villenage 41. 42. 10. E. 4. fo 1. Yet 39 H. 6. f. 15 A release of all actions by an Executor extincts actions as Executor But Frowicke iâ— against it in 20. H. 7. Kâ—l 64. See these so resolved in Plow com 525. intâ— Râ—ansby Grantham P. 20. Eliz. This may be in his name onely out of whose possession the goods were taken Co. lib. 5. fo 32. 34. H. 6. 43. Co. lib. 9. 88. b. See this also Ploâ— com 520. a. 21. Hen. 6. 30. If other goods taken among them he is excused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded 43. E. 3. 24. Brâ— 145. Makes a quae if it be locked Plow com 280. 43 Ed 3. 2. 10. Ed. 4 5. 6. Of the Deed execution first 12. H. 4. 7. Hen. 4. f. 31. See Bro. Exe. â— 24 Co. l. 3. f. 90. 91. To like purpose see more Litl f. 77. b. 2. Eliz. Dy. 281. Plow com 291. 21. Hen. 7. 4. A Are as one person therefore cannot plead severall pleas 〈◊〉 abatement 3â— H. 6. 17. 9 H. 6. f. 44. 38. E. 3. 9 Bro. Ex. 13. Brâ— Ex. 20 21. Therefore one Executor sued iâ— he plead that there is another Executor not sued must plead that he did administer 9. H. 6. 44. Bro. 13. 33. H. 6. 38. â— â— 20. 32. E. 3. quid jur 〈◊〉 5. â—3 H. 4 Aid â—86 A 9. Ed 3. cap. 3. A B But not if he