nothing it was resolved that A. should not have iâ— for their lives but for his owne onely This Case was said to come very close in reason to the Case in question for as heere the intent of the Lease was that B. and C. should bee estated for their lives and since that could not bee therefore the naming of them should bee utterly voyd and as if they had not at all beene named and their lives shall not stand as a measure for the estate of A. So in thother Case the intent of the will being that the Lease or Land leased should goe to the heires Males of the body first of Alexander and after of Raulphe since this cannot bee therefore the words and name of heires males should stand for a meere blancke and cipher and not to measure out any state to the said Alex. and Ra. and their Executors and assignes Also it was said on the defendants part that an estate for life in the judgement of Law is of so short and uncertaine continuance that if A. make a Lease to B. for his life and after makes a Lease of the same Land to C. for yeeres now shall not this latter Lease bee voyd absolutely for any part of the terme but shall stand in expectance of the death of B. and as soone as hee dyeth shall take effect immediately whereas if the Lease to B. had been for ten yeeres or any like terme then the Lease to C. should have beene voyd for so many yeeres of his terme thus it appeares that a State for life is very momentary in the judgement of Law and not reputed of any certaine continuance so much as for a day but it is otherwise of an estate tayle so as if A. having given Land to B. in tayle doth after without indenture which makes an Estoppell make a Lease to C. for xxj yeeres and then B. dyeth without issue during the terme yet shall not the Lease take effect because it was utterly voyd at the first making For an estate tayle being a state of inheritance may in the intendment and judgement of Law have continuance for ever as appeares both by the Case of Adams and Lambert where it is held within the Statute of Chaunteries which speaks of gifts to have continuance for ever Therefore a reversion upon an estate tayle is no assets nor giveth cause of receipt otherwise in all these Cases it is touching a reversion expectant upon a state for life Againe it was said by the defendants councell that an estate may bee limitted to A. and his heires during the life of B. with remainder to C. as in Chudlies Case was resolved but if Land bee given to A. and his heires so long as B. shall have heires of his body or heires males with remainder over to C. this remainder is utterly voyd So as there is in the judgement of Law a great difference betweene the largenes and continuance of an estate tayle and of an estate for life And if which is worth the observing a feâ— simple cannot afford a remainder to bee drawne out of it after such a gift to one and his heires during the continuance of an estate tayle or of the measure thereof much lesse can a terme yield such large thongs to bee cut out of it as a remainder after an estate to one so long as hee shall have heires of his body or heires Males which is all one And in this case the remainder was held voyd by Baldwin and Shelley though Engl field were of contrary opinion as the Lord Dyer sheweth Further it was said that if such a conveyance by will should stand good it would raise a perpetuity not to bee cut off by any recovery But whereas the case of Hammon hath beene related before so by way of admittance it was argued as a gift and bequest to Al. Ham. and the heires Males of his body with remainder in like manner to Ralfe The truth of the case was that the words of the will were onely to Alexander and his heires Males not speaking of his body and so to Ralfe which as was urged by the defendants counsell made the Case stronger against the plantifes for admit that the former way Alexander should have had but a state determinable upon the continuance of his issue Males yet here not so Since the reason why in Willes such a devise being made the Law should supply the words of the body is onely to make an estate tayle to the issues Male according to the Testators intent Now in this case of a terme for yeares so bequeathed no estate tayle could possibly bee though these words had beene in the will and therefore the motive to the Law fayling no such supply will bee made by the Law since it would bee to no purpose consequently here was neither state tayle nor issues or heires Males of the body on whose continuance this state of Alex. should bee determinable Therefore it was an absolute and totall bequest of the terme to Alexander for ever viz. so long as the Terme should continue for as a bequest to one for ever is asmuch as a bequest to him and his heires so a bequest to one and his heires is as much as if it had beene to him for ever And this Case after sixe arguments on each side at the Barre if I much mistake not was upon argument by the Barons adjudged for the defendant by the Lord chiefe Baron Tanfeild and M r. Baron Bromley M r. Baron Denham who onely heard as I take it one argument on each side made of purpose in respect of his comming into his place after the former arguments being of the contrary opinion and the judgement proceeded upon the point formerly touched that as this case was the state of Alexander did not end by his death and remaine to the Executors of Ralfe Other points were stirred which will bee touched upon other divisions after in this Chapter It will be observed that I doe more fully expresse reasons and points inforced on the defendants part then on the plaintifes whereof let these two reasons bee accepted First That I better could relate that then the other being the first who argued for the defendant and hearing little of that which was by others said on either side after nor hearing the Courts Nec ad hoc conductus nec pedibus fortis Secondly the labour did lie on the defendants part to prove that this Case differed from the common case of devise to one for life with remainder to another Wee are now come to the sixt point viz. that where House or Land held by lease or the proffits thereof or the lease or terme it selfe which in a Will makes no difference is bequeathed to A. for life or for some part of the terme with the remainder to B. and the Executor assenteth that A. shall enjoy his bequest whether this shall enure to B. also since without the Executors assent no legacy can take
effect And it hath beene resolved that this assent shall bee effectuall as well to all the remainders as to the first estate and so according to former resolutions it was admitted in Hamons Case that Alexander his assent to take as legatee sufficed if the bequest had beene good for the remainders to Ralfe and others And the reason of this doubtles is because heere the particular estate and the remainder are all but one estate in Law they make but one degree in a Writ of Entre nor shall have but one yeere and a day to enter for mortmaine And an atturnement to the grantee of a rent or reversion for life with remainder over doth enure also to the remainder which being an assent hath much affinity to that of the Executor each tending to perfect the grant of another man Now then whereas it was urged in Hammoâ—ds Case that the state limitted to Ralâ—e should take effect not as a remainder but as a new estate to commence futurely viz. when Alexander should bee dead without issue male if it should bee admitted to bee so then could not the assent of the first state to Alexander have enured to this since to A. remainder it worketh as being one estate with the first which reason must faile thother way This difference betweene a remainder and new estate future brings to my minde the case of a rent by way of new Creation granted by C. out of land to A. for life or in taile with remainder to B. in like manner where it hath probably beene held although this limitation to B. cannot bee good by way of remainder because C. had no estate in the rent remaining with him when hee made the grant to A. yet should it be good by way of new grant and creation to commence futurely But this doubtles cannot so be but with a difference for if the grant were by indenture betweene C. on th one part and A. only on the other part now B. being no party to the deed can take nothing by it except by way of remainder but if hee were party to the indenture or if the grant were by deed poll to which all men are alike parties then it happily may enure as a future grant to B. This not impertinent Now as the executors assent to one cannot enure to another though of the same thing except by way of remainder so neither can it any way where the things are not the same except in very speciall cases as if a termor bequeath a rent to A and the land it selfe to B the executors assent that A should have the rent is no assent that B should have the land yet I think the assent that B should have the land doth imply the assent that A should have the rent 1. For that the restraint imposed by the law against the passing of a chattell by a will without the executors assent being out of respect to the payment of the testators debts now if the land shall passe to B it is no more availeable to the testators debts that it passe discharged of the rent then charged 2. Since the gift and bequest was of the land charged with the rent therefore if this bequest shall take effect it shall carry the land according to the testators intent viz. with this charge upon it for what else doth the executor in this but assent that the will of the testator herein do stand and take effect and consequently B must take the terme according to the will and not in any different or contrary manner Next we are to consider of the manner of assents by executors which hath some affinity with the fourth point But here we shall consider only of assents conditionall now to this purpose we will cast our eyes upon two sorts of conditions viz. precedent and subsequent As for â—he former an executor may to a legatee absolutely given assent upon a condition precedent as thus I am content that if you can get and bring in to me such a bond wherein the testator stood bound unto I. S. that then you enter upon the terme or take the corne or cattell to you bequeathed So of other like conditions which may precede the assent as if you can get the assent of my coexecutor or if you will pay the arrerages of rent to the lessor behind at the testators death or if you will pay the wages already due to the servants attending about the cattell or corne to you bequeathed In this case if the condition be not performed there is no assent and therefore the conditioning in this manner is good But if it be upon a condition subsequent as thus I do agree that you shall have the thing bequeathed to you provided that you shall pay so much yearly to me or to such a creditor of the testator now the legatee entring into or taking the thing bequeathed shall not lose it againe by failing to performe the condition afterwards for the executor by his assent cannot make that legacy conditionall which the testator gave absolutely no more then he can make that bequest to be absolute which the testator gave conditionally except by a release made of the condition As in other things so in this the executors assent is like to the atturnement of a lessee which cannot be upon a condition subsequent where the grant is absolute or without condition though yet he may to his atturnement prefix a condition precedent In the eighth place we are touching the bequest of leases or chattels reall to consider what manner of interest one to whom a remainder of a terme after the death of another is limited hath and whether he may grant the same or dispose thereof during the life of the first And as to that it is cleare that he hath but a possibility of remainder for that possibly the whole terme may be spent in the life of the first to whom during his or her life it is bequeathed now a meere possibility is not grantable Therefore was it resolved in the late Queenes time where hee in remainder granted or sould his state or interest to another during the time of the first that this grant was utterly void because a possibility cannot be granted but whereas some opinion in that case was delivered that this possibility could not be released no more then granted it hath since bin resolved that he in the remainder by his deed of grant or release to the devisee for life may make his estate which before was determinable by his death to be now absolute so as it shall continue to his executors administrators and assignes after his death during the whole terme It may be that what was conceived in the said case of Fulsey negatively of the validity of a release by him in the remainder might be meant or perhaps expressed of a release to him in the reversion but surely me thinks though he could not surrender yet his release or defeasance to him
him in service till a fit time of providing him a new Master and fit for him not to depart suddenly Now for things personall without life These are evident viz. all Householdstuffe Implements and Vtensills Money Plate Jewells Corne Pulse Hay Wood felled and severed from the ground Wares Marchandise Carts Plowes Coaches Saddles and such like moveable things More doubtfull Cases touching things personall FIrst touching things living If the Testator had any tame Pigeons or Deere or Conies or Fesants or Partridges these all aswell as Chickens shall goe to the Executors so though not tame if they were taken and kept alive in any Roome Cage or like Receptacle as Fesants and Partridges often be so fish in a Trunke as also young Pigeons though not tame being in the Dovehouse not able to flie out yet their Dammes the old ones shall goe to the Heire with the Dovehouse And if the Testator had any reclaimed Hawkes they also as Chattells Personall shall goe to the Executor because they are things commonly vendible And whereas Hounds Greyhounds and Spaniells be not so commonly bought and sold nor so anciently have beene yet are they now growne to be a Marchandize and why not for although they be for the most part but things of pleasure that hindereth not but they may be valuable as well as Instruments of Musicke both tending to delight and exhilarate the spirits A cry of Hounds hath to my sense more spirit and vivacity than any other Musicke Adde hereto that there may be some profit and advantage gotten by them both quoad adeptionem boni ademptionem mali the getting of some good food and the preserving of others as Lambes Conies Fish Pultry by killing Foxes wilde Cats and others which destroy them And wee know that money is recoverable in dammages for taking away such or a Mastiffe serving to keepe an house So of Ferrets to catch Conies c. Therefore they are valuable But it may perhaps be objected that none of these above are Cattell and therefore not replevisable consequently no property in them for when more then one living Chattell is distrained the replevin is to be by the name of Averia signifying Cattell For answer not to insist that one may have property in divers things whereof no Replevin lyeth as Corne or Hay not in Sackes nor Cartes money not shut in bagge nor box c. I further say that even the word Averia may be applyed to these for so I find it to Hens and Capons in the Booke of Entries viz. in the writ of Curia Claudenda where the Plaintiffe complaines of the Defendants not making his Mounds per quod averiaipsius A. viz. Capones galinae alia Averia ipsius A. that is whereby his Cattell viz. Capons and Hennes and other his Cattels came into the Plaintiffes House and Garden to his dammage c. And both Newport and Newdigate hold that a writ of replevin lyeth of such things though Brudenell were of contrary opinion yet he also held an action of Trespasse maintainable for taking of them and therefore admitted a valuable property in them Now come we to things without life and first to those abroad in the Fields Put the case that a man dyes in Iuly before Harvest I meane seised for life or in Fee or Taile in his owne right or his Wives or estated for yeares of Land in the right of his Wife being sowne with Corne or any manner of Graine the common saying is Quicquid plantatur solo solo cedit yet this shall goe to the Executor of the Husband and not to the Wife or Heire who shall have the Land but Hay growing viz. Grasse ready to be cut Apples Peares and other fruite upon the Trees shall goe to the Wife as also if they had beene upon a mans owne Land of Inheritance they should goe to the Heire though the Corne should goe to the Executor The reason of difference is because this later comes not meerely from the soile without the industry and manurance of man as the other doe and I take Hoppes though not sowne if planted and Saffron and Hempe because sowne to pertaine as Corne to the Executor All those yet shall passe to one to whom the Land is sold or conveyed if not excepted though never so neere reaping felling or gathering But what if the Wife had the Lease for yeares as Executor to some former Husband or other friend and the Husband after sowing dyes who then shall have the Corne Certainely the Corne shall goe to the Executor of the last Husband at least so much as is more then the yeares value of the Land or the making it up by addition of other things for the value is to be assetts for payment of debts and Legacies Put the case againe that the Husband and Wife were joynt-tenants of the Land and then the very Corne growing shall survive to her together with the Land and though the Husband sowed it yet shall it not goe to his Executor Being in consideration of things growing on the ground let us not forget to thinke of Trees sold by I. S. seised of the Inheritance of the Land to I. D. who dyeth before felling this Interest is a Chattell which shall goe to the Executor and not to the Heire of I. D. but some colour may be that these because fixed to the soyle and Freehold are reall Chattells as the Interest in Land is and not personall So also of Trees Excepted by him who selleth the Inheritance of the Land but in both cases I conceive this interest to be personall and not reall for that as it is a propriety of Chattell in the Vendee or Vendor with exception it stands in consideration severed and abstracted from the soyle or ground where the Trees grow though the Trees be not actually severed by the Axe from their mother Earth But if the Lessor for yeares or life except the Trees these continue parcell of the Freehold and Inheritance And after Corne reaped and before the Tithe set out the Inheritor of the Tithe dying I thinke the Executor and not the Heire shall have the Tithe after set out Now Let us come home to the Testators house and see in and about it some doubts what pertaines to the Heire and what to the Executor Question hath beene both of old and of late touching Coppers Leads Furnaces Fat 's for Dyers or Brewers Pales Rayles Glasse in Windowes Tables Dormants Wainscotes Doores Lockes Keyes and such like to whom these should goe whether to the Heire or Executors And in the latter end of Henry the 7. his time an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall the Heire brought an action of trespasse against him for so doing and it was adjudged for the Heire viz. that this was to goe as part of the Freehold and Inheritance to the Heire and
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
other the goods chattels or credits he hath as Executor the property not being altered for that he hath not them properly as his own or to his owne use onely he may make a continuation of the Executorship and his Executor shall have them as Executor to the first Testator as was resolved by the Judges of both Benches in the late Queenes time And if he be Administrator the bequest is then also voide nor then will they goe to his Executor but to a new Administrator but on his death-bed he may give them by Word or Deed though not by Will Next if a man have debts owing to him as many have much it is considerable whether by way of bequest in his Will hee can give away these to any from his Executors And doubtlesse he cannot effectually in Law they being not subject to assignement unto any except the King So as if he give such a debt to A. and such to B. yet must the sute for them be in the name of the Executor and so also the Release or Acquittance for them and not in their names to whom the bequests is But when they be received if there be no debts to pay the Executor ought to deliver them to the party to whom the bequest is and therefore may be compelled in Court of Conscience or in the Spirituall Court Therefore the Case of the bequeathing money payable upon a Morgage is in this manner to be understood to be good and not otherwise as I take it He that is joyntly with any other estated in Lands or goods can give no part by his Will but all will survive but by Act in his life hee may dispose of his part and the Assignee may dispose of his moiety by Will yea though it be halfe an Horse or Oxe that cannot be divided So of a Lease of Lands or Tithes or Grant of goods to two habendū one moyety to the one and the other moyety to th' other each may give his moyety by Will But if one be possessed or estated for yeares by Lease Wardship or Extent c. in the right of his wife or have the next avoidance of a Church in her right he cannot by Will give or bequeath any of these but notwithstanding they will remaine unto his wife upon his death but yet his Gift or Grant of them taking effect in his life time would binde his wife and carry away the interest from her If one be Tenant for the lives of one or more others as oft times men take Leases for lives of yonger persons than themselves this cannot be by Will disposed of for that it is no chattell nor is it within the Statutes of Wills for that it is no state of inheritance Therefore let the party looke to convey it in his life time lest it goe to an Occupant viz. him who first shall enter If it be a State in Land hee must either make Livery have a bargaine and sale inrolled or covenanted to stand seised to the use of his wife or some of his blood or make a Lease for yeares determinable upon those lives Good it be by bargaine and sale for yeares if the thing be in Lease that so without Inrolement or Atturnement the Rent may passe else a bargaine and sale may be made for a moneth or such like time and then a Release or Grant of the reversion in stead of Levery Seisin But if a man have a Lease for never so many yeares determinable upon life or lives that is if such or such live so long which unskilled persons call a Lease for lives this State may well enough be given and disposed by Will because it is but a chattell If a man seised in Fee or in Tayle of Land having Corne growing upon it and by his Will doe give the Corne and die before severance this is a good bequest because the Corne should have gone to the Executor So it is also of a Parson touching his Glebe and a man seised in the right of his wife or his owne right but for life But as for trees growing upon the ground these can no otherwise be given by Will then as the Land it selfe upon which they grow may be given of which matter as not pertaining to the Office of Executors viz. How and in what manner Lands may be given by Will I entend not to treate in these discourses Of the Revocation and Countermand of Wills and new Publication HAving considered of the making of Wils and Executors Let us before wee come to the Probat consider of Revocation for that may take away the force of a Will rightly made A Will therefore having two parts viz. Inception which is the making and Consummation which is the death of the Testator or maker of the Will there is power in him at any time before death to revoke or alter his Will at his pleasure Consider we therefore of Revocations and also of new Publications or Reaffirmance of Wills in whole or in part As therefore a Will may bee made by Word So also may a Will made in Writing be by Word revoked or disanulled for since every making of a later Will is a Countermand and suppression of the former Will and since a Will may be made Nuncupatively or by Word and so by making a verball Will one may revoke a Written Will It will thereupon follow that one by Word may expresse the alteration of his minde thus farre that the Will by him formerly made shall not stand but be revoked and annulled and this will stand and be effectuall so as if he after dye without making any new Will or new Publication or Reaffirmance of the former he dyeth intestate or without will As a Will may bee wholly revoked so also in part Hereabout a good resolution was in a Kentish Case where one Ryete by his Will in writing did give some Gavel-kinde Land to one Harrison and five dayes before his death said in the presence of witnesses that this gift should not stand and that he would alter it when he came home desiring them to beare witnesse of his Revocation Now before he came home he was killed by the said Harrison who caused the Will in writing to be proved and after he was attainted and hanged for the murther and his Sonne by the Custome of Kent viz. the Father to the bough and the Sonne to the plough entred into the Land and this manner of Revocation by word onely was held sufficient although the Will in writing were not cancelled nor defaced And the like resolution for verball Revocations is implyed in the Case of Forse and Hembling where it being resolved that a Feme Covert or marryed woman by word Countermanding and Revoking her Will formerly made when she was a sole or unmarryed Woman this was not effectuall nor of force by reason of her Coverture taking away the freedome of her
Will hereby it is implyed that another who hath freedome of Will may by Word sufficiently revoke a Will in writing and so was it since also admitted in the Case between Sir Edward Mountague and Ieoffryes touching the Will of Sir Io. Ieoffryes but there a difference was conceived betwixt saying I will revoke my Will which only expressed a purpose or intent therfore was no present Revocation and saying I doe revoke it or it shall not stand or my heire shall have my Land which crossed the gift of it by the Will And as Wils may be wholly or in part revoked so may also the executorship of one or more of the Executors and yet the Will may stand in all the other parts so as there be any one Executor or more unrevoked but if all be revoked then the whole Will is revoked because no Will can stand without Executors and this Revocation may be by Word onely without being expressed in the Will or any other writing But I would wish all to expresse such revocation in the foote of the Will or that the name or names of the Executor or Executors so revoked be expunged or blotted out of the Wil and that this be done in the presence of some witnesses to testifie the act and intent of the Testator Againe Revocations may be by act in Law as well as in fact or by direct and expresse termes as in the said Case of Mountague and Ieoffryes where Land being devised by Will and the Devisor after making a feoffement though there were some defect in the Livery to make it effectuall or if he made a bargaine and sale that was never inrolled or granted the reversion but no atturnement had so as the Land passed not yet in all these Cases the Will or gift of Land stood revoked But in Case he had onely Covenanted that he would have made such an estate and not done it this was held to bee no Revocation And so by some in case he doe but make a Lease leaving the Fee simple as it was but of this Quare And if a difference may not be betwixt making a Lease for yeares and a Lease for life which altereth the Freehold If a Lease for twenty yeares be bequeathed to I. S. and after the Testator maketh a Lease for fifteene yeares reserving a Rent I take this to be no Revocation of the bequest but if the Testator after this Will made take a new Lease for a longer terme so as the former Lease is surrendred in fact or in Law this must needes be a Revocation of the bequest or at least an adnullation thereof and that although the bequest were generally of his Lease not mentioning the number of yeares for this which he now hath is another Lease and not that which he had at the time of the making of the Will So if one give his blacke gelding by Will and after before his death he selleth or giveth away that Horse and buyeth another blacke one this new gotten Horse shall not passe by the Will because it was not the Testators at the time of making his Will So also if the Crop in the Barne be bequeathed in October and the party lives till that time twelve month having sold that Crop and Inned a new this later Crop shall not passe by the Will and the former cannot Againe as revocation may be by alteration of the State of the Devisor in the Land Devised so may it also be by alteration in some case of the state or quality of the person of the Devisor As if a woman sole make a Will and after take a Husband this without any more as is resolved in the said case of Forse and Hembling doth worke a Revocation or adnullation of the Will for that else it should be irrevocable since shee having lost the freedome of her Will cannot actually and directly make a Revocation as we before have shewed But notwithstanding her Will be revoked yet in case her Husband before or after marriage with her were bound or Covenanted to performe this womans Will if he so doe not by payment of the legacies therein bequeathed his Bond or Covenant stand good and be sutable against him as was adjudged touching the Will of Elizabeth Smaleman marryed after her Will made to one Wood. Who first was bound to performe it yet another case there is of Alteration in the state of the Testators person which makes no Revocation of his Will As if he being of sound minde and ability make a Will and after becommeth franticke In this case this is no Revoction So as his Will stands till his death irrevocable if he recover not Now of a Will Revoked there may be a reviver by a new Publication and therof now Of new Publications HAving shewed how a Will may be revoked and so lose its force let us now see how without making a new Will that so revoked may be revived and set on foote againe And that is divers wayes as First by a Codicell annexed after thereunto as was resolved betweene Betford and Barnecot in the Kings Bench. Secondly by adding any thing to the Will or making a new Executor c. Thirdly by expresse speech or word that it should stand or be his Will as I conceive to have beene the better opinion in the said case of Mountague and Ieoffryes wherein yet was much difference of opinion both touching Revocation and new Publication If a man having made a former Will doe make a latter which is more than a bare Revocation yet if afterward lying upon his death-bed and speechlesse both these Wills be delivered into his hand and he required to deliver to one of his friends about him that Will which he would have to stand and to keepe in his hands th' other he thereupon delivereth to the Minister or other his neighbours the first made Will retaining in his hands the latter as was done in the time of Edward the third Here the former Will though made voyde many yeares before by the latter is revived and shall stand as the Parties Will. But now put the case that a Bequest at the first is voyde yet by Publication after it may be made good as if one give to Sar. his wife a peece of Plate or other thing and hath no such Wife at the time but after marryeth one of that name and then publisheth his Will againe now this shall bee a good Bequest So if one Devise Lands or Goods which one hath not If he after doe purchase the same and then say that his Will before made shall stand or be his Will It shall be a good Will and Bequest for this is in effect a new making And though most of the precedent cases be of Revocation of particular parts of the Will and not of the totall Yet first be it considered that that part so revoked was in effect the substance of the Will Next it is easily discerned that
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
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
upon a statute And if they had no warning in the Scire facias but upon nihil returned the judgement passed there also the executor may bee releeved by audita querela because there was no default in him that hee did not plead or set forth the judgement upon the suit in the Scire facias Nor will it bee any plea for the creditor by statute to say that his statute was acknowledged before the judgement and so is more ancient for a latter or more puisne judgement is to bee preferred before a statute in time precedent But if this judgement be satisfied and it only kept on foot to wrong other creditors or if there be any defeasance of the judgement yet in force then the judgement wil not availe to keep off other creditors from their debts And thus much touching debts by judgement viz. how they stand in priority before other debts by statute or recognizance Now to see how they stand among themselves let this be observed viz. that between one judgement and another had against the testator precedencie or priority of time is not materiall but he which first sueth execution must be preferred and before any execution sued it is at the election of the executor to pay whom he will first yea if each bring a Scire facias upon his judgement the executor may yet confesse the action of which he will first notwithstanding the Scire facias was brought by the one before the other In this Scire facias the defendant may plead generally that he hath fully administred before the Scire facias brought without shewing that he did administer in payment of debts of as high nature yet that must be proved upon the evidence else the triall will fall out against the executor Thus have I delivered the most materiall things in my apprehension touching debts by judgement yet thereabout I will adde for the better information of the Reader not studied in the Law these few things First that what hath been said is only to be understood of judgements against the testator and not of any against the executor himselfe for of those being but debts by specialty at the time of the testators death we shall speak after Secondly what is said of the testator in case of an executor immediate is likewise to be understood of the testators testator in case of the executor of an executor for where A. makes B. executor and B. makes C. executor there the goods which came from or were left by A. be not in the hands of C. lyable to judgements had against B. Nor on the otherside are the goods of B. in the hands of C. subject to the judgements had against A. And the like is to be understood of statutes recognizances and bonds as elâ—ewhere is somewhat touched Thirdly Recoveries or judgements by meere confession without defence are yet of the same nature and to have the same respect as other recoveries upon triall or otherwise for although they may seeme to be but of the nature of recognizances which be debita recognita yet doe they differ from them in that here a debt is demanded by a declaration which is intended true that therefore the defendant cannot deny it but in case of a recognizance it is not so for there usually no action is entred nor debt demanded Fourthly the foreshewed respect to debts by judgement is not to be inclosed within Westminster Hall-and be restrained to the foure Courts there but may and must extend it selfe to judgements in other Courts of Record viz. in Cities and Townes Corporate having power by Charter or prescriptioÌ„ to hold plea of debt above forty shillings as in London Oxford c. For although there execution cannot bee had of any other goods than such as be within the jurisdiction of that Court yet if the Record be removed into the Chancery by Certiorari and thence by Mittimus into one of the Benches so execution may be had upon any goods in any County of England Fifthly in case where the testator was bound in a recognizance and a Sci. fac brought against him and thereupon judgement given Although this judgement be not quod recuperet as in case of actions of debt but quod habent exetiâ—nem yet since execution is the life fruit and effect of all judgements this may now well stand for a debt by judgement as I take it Of Recognizances and Statutes NExt unto debts by judgement are those by statute or recognizance to bee regarded by the executor And because I find no difference of priority or precedencie betweene these two I therefore ranke them together yet one reason of preferment given to judgments before statutes in Harisons case viz. that the one remains a record upon the roll in the Kings court whereas the other being carried in the pocket of the counisee is more private This I say should give priority also to recognizances before statutes as also another reason for that statutes are not properly records but obligations recorded yet do I not find that this makes a difference for priority of payment And indeed the statute is the more expedite remedie since thereupon execution may be taken out without any Scire facias or other suit which cannot be in the case of a recognisance for there if a yeare be past after the acknowledgement no execution can be sued out against the partie himselfe acknowledging it without a Scire facias first sued out against him And if he be dead then though the yeare be not past yet must a Scire facias be sued and thereupon the executor defendant may plead some plea to hold off the execution for a time But this notwithstanding the executor may satisfie the recognizance before the statute at least if he doe it before execution sued thereupon for they standing in equall degree it is at his election to give precedencie and preferment to whether he will Neither is it materiall which of them were first or more ancient nor between one statute another doth the time or antiquity give any advantage as touching the goods though as touching the lands of the conusor it doth but as for his goods in the hands of his executor whosoever first getteth hold of them by his execution shall have the preferment And before suing of execution the executor may give precedence or preferment to whom he will But now some may object that there is no course nor writ of execution for any such counisee against the executor and if so then statutes merchant and of the staple are in vaine spoken of and it is true that Master Brook after Chiefe Justice of the Common Pleas in his new Cases professeth that he knew not any remedy for the creditor out of the goods of the conusor after his death But if this should be so the Law were very defective since the substance of many especially of marchants for and among whom
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
that it is done to the use or profit of the infant Executor then no sale of lease or goods or assent to legacy by such administrator will bind or prejudice the infant Executor But otherwise perhaps if the administration during the minority bee committed generally And if the Testator himselfe making an infant Executor doe also appoint another to bee his Executor during his nonage expressing it to bee onely for the benefit and behoofe of the infant executor I doubt whether this temporary executor stand any whit restrayned froÌ„ what pertaines to the power of an absolute executor for there may be perhaps difference between him to whom the owner of the goods commits the government of them though but for a time and in speciall manner and an administrator so specially made by the ordinary another being presently by the will of the owner or Testator to have the administration in whom for a time legall defect is found But now let us passe over this age of 17. and consider of the infant betweene that time of his being admitted to take upon him the executorship and his accomplishment of his full age of 21. First then suppose that hee doth release a debt due to his Testator whether shall this bee good to bind him and to discharge the debtor aswell as if the executor had bin of full age hee now having proved the will and being by the Law spirituall approved an able executor And this point comming in question in Russells Case in the late Queenes time consideration was had both of divers good reasons for enabling of this release as that an executor represents the person of his Testator and in his right and power doth these acts and not in his owne and therefore his infancy which is a state or condition of his owne naturall person shall no more disable him then it doth the King a Mayor or other head of a Corporation Also divers Bookes were found to runne that way as well in the case of an infant as of a Femme Covert But upon great deliberation in the Kings Bench and upon conference had with the Lord Anderson Manwood and other justices it was resolved and adjudged that the release of an infant executor without payment of the debt or duty would not bind or barre him first for that if it should it would be a wasting or devasting of the goods of his Testator and so would charge his owne goods Secondly It would bee a wrong which an infant could not doe by his release Thirdly It was no pursuit nor performance of the office or duty of an executor but the contrary And upon this judgement a writ of error was brought in the Exchequer Chamber where it was agreed by all that the release was not effectuall nor binding so as this point now had the resolution of all the Judges of England But it was agreed that if payment or satisfaction had beene made then the infant executor might have made a good acquittance and discharge indeed payment it self if proved brings discharge enough except in the case of a single Bill Note that the principall case adjudged was not of a release of any debt or duty by specialty but of trespasse in conversion of goods found or taken in the Testators life time But Poâ—ito that this infant had assented to a legacy whether will this binde him or not for in the said Case of Russell it is said that all things which an infant doth according to the office and duty of an Executor will stand firme now it is part of his office to pay and execute Legacies Yet since this act amounts to a vastation or wasting of the Testators goods aswell as the other in case there remaine not goods sufficient for payment of the debts and consequently here aswell as in the other case the infants owne goods would become lyable to his Testator debts I doubt and incline that it is not nor can stand effectuall for except in the other wee admit a want or possibility of want of assets or goods the release could neither hurt the infant himselfe nor doe wrong to any other and that admitted this case is of like prejudice yet if this asset should bee voyd so also would bee his payment of Legacies and how then were hee an able Executor at the age of 17. yes to sue and to bee sued for debts and Legacies and if upon suit it cannot bee shewed that debts will take up all or disable the payment then happily hee may bee forced to pay Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse or conditionally viz. if there bee besides goods sufficient c. or that else the nonaged Executor may have an action of accompt for the money by him payed to the Legatee and also avoyd his assent where that only needfull But doubtlesse neither the assent of such Executor before his age of 17. nor any payment of a debt to him could bee good although such acts to or by another Executor before the proving of the will would stand firme and good for this infant wants not onely proving but also ability to prove his Testators will yea the will stands suspended and the Testator as it were intestate whilst the administration stands in force so as during that time nothing can bee done by any as executor and therefore there is great difference betweene the cases What if payment of a Legacy bee made to an infant can hee make a sufficient acquittance This I confesse is besides the point in hand yet because it concerns infants and Executors though not infant Executors it is not amisse here to cast some thoughts and words upon the point for that it many times perplexeth both Executors and Legatees First therefore in case the Executor bee of the yeares of discretion viz. 14. I hold it cleare that any payment to him made will stand good for that the Law at that age holds him able to governe and manage his owne Lands held in socage and consequently to receave the rents thereof wherefore whether hee who makes such payment have any acquittance or not if hee have proofe of the payment hee is well enough acquitted from any second payment and if without payment hee get an acquittance it will not suffice the infancy of him who makes the acquittance considered Besides if the acquittance bee as most usually they are but signed onely with the name of the maker and not sealed it is onely an evidence or proofe of payment and no pledable acquittance because no deed so as it nothing differs from proofe by witnesses save that it is not mortall as they But now if the infant bee under the yeeres of discretion what shall wee say to a payment to him specially if hee bee but three or foure yeares old or thereabout heere I thinke caution is to bee used by the executor generally and the surest way is if hee feare to
H. 6. 8. Co. lib. Intra 144. but 145. a. iâ— the verdict hee is called Exec. De njuria sua propria 39 H. 6. 45. 46. 21. H. 6. 8. 19. 9. E 4. 14 15. 1 2. P. M. Dy. 165. 33. H. 6. 38. 35. H. 6. 31. â— R. 3. 20. 21. H. 6. 8. If the administration were committed before the suit began the writ shall abate else not as was of old conceived 3 Point How far liable to creditors Yet hee must looke to his plea else by it he may draw al sued for upon himselfe as if he deny his being executor or administrator Co. lib. Intr. 144. 145. Pluâ— de â—oc 1. El. Dy. 167. cap. 12. 4 Point What acts of his of force M. 40. 41. Eliz. Co. lib. 5. f. 30. 5 Point Plea denying the Executorship 21. H. 6. 19. 20. Bro. 62. 2 E. 4. f. 4. 1. 9. H. 7. 15. Lib. Intr. 322. 333. 33. H. 6. 33. 34. He was suable as soone as the Testator was dead But if hee did it as Adm. it is otherwise yet see that specially pleaded Co. Lib. Intr. 148. a. See Co. Lib. Intrac Judgm so entred fol. 145. b. Read Carters case Co. Lib. Intr. 29. a. not first de bonis testatoris si c. See Bro. Ex. 22 these reasons for this diff 33 H. 6. 23 24. So of other perform Co. Lib. Intr. 133. a. 6 E. 4. 1. 7 E. 4. 8 So Bro. Ex. c. 22 that the Book contrarily reported 34. H. 6. 22 23. is erroneous as was descryd by Fitz. al. 23. H. 8. the Record being not so as the Booke saith the judgement was Lib. Intr. 148. 149. This good though the judg were by non sum inform no averment that it was without covin Co. Lib. Intra 152. 11 H. 4. 5. There a cap. ad sat was awarded for the Dammages But hee may I think forbeare so to doe and to the judgement for part ad that when more assets come hee shall have more Lib. Intracion Fol. 223. Fol. 542. M. 28. H. 6. Ro. a. 321. Lib. Intra 329. a. See Lib. Intr. 322. Lib. Intr. 151. 7. H. 4. 39. Bro. 50. This plea is not good per cur because some may haâ—â— since accrued Lib. Intrac 322. a. b. but a place must be shewed So 21 H 6. 19 20. Bro. 62. So done Co. lib. Int. 144. b. Mich. 13. 14. Bliz. Dy. 305. Lib. in t 322. b. Tr. 37. Eliz. Yet Finch 46. E. 3. f. 9 10 held the contrary viz. that judgment should be of the whole but execution onely for so much a Sci. fac for the rest when more assets See Co. lib. 8. f. 134. So 19 H 6. f. 37 〈◊〉 4. f. 24 See judgement so entred Co. lib. Intr. 151. b. â—o 7 E. 4. f. 9. It is 11 H. 6. 40 41. 5 Mariae fol. 182. Reade Norwoods case Co. l. b. Intr. fo 1. 2. Tr. 30. Eliz. Pase 33. Eliz. in com banc So for rent behinde since the testators death Co. lib. 5. fo 31. the suit is in the debet as for his own debt M. 14. 15. Eliz Lib. Intr. 329. a. b. De terris catallis c. Sect. 1. Sola secreta examinata Debts except which are not properly good 5. Ed. 2. Fitz. devise 24. During her life hee is but not after But the husband may receive them or release them 12. H. 7. f. 22. The husband was sued in Spirit Court as executor to his wife So she is often to former husband and to father c. 39. H. 6. f. 27. 34. H. 8. S. Bro. TestameÌ„ts 21. 18. E. 4. f. 11. Vavasor Inst 4. H. 6. f. 31. 12. H. 7. 24. b. Tit. Dâ—vis f. 27. 〈◊〉 29. Eliz. in 〈…〉 Cooke lib. 4 51. b. Note 13. Ed. 1. Fitz. Exec. 119. â— Hen. 7. 15. b. 2 H. 7. 15. 33 H. 6. 31. 43. 39 Ed. 3. 1. 27 H. 8. 24. 18 H. 6. 4. The plea is that the femme did or did not administer without speaking of the husband 33 H. 6. 31. The husband may administer and prove the will for his wife 1. El. Dy. 166. b. there is cited 3 H. rot 112. Nota per Bill 7 H. 4. 13. See 18 H. 6. 4. In det the plea shall bee that she hath fully administred replic that she hath assets never meÌ„tioning the husband 33 H. 6. 31. M. 31. El. in com b. If the husband be to avow it must be in the right of his wife executor or administrator Manfilds case Doctor Juliâ— his case 10. H. 7. 20. Bro. Just Cui in vita 15. Shee may sell to any other but not to him Fenner Just in ba. reg Pasâ— 37. Eliz. 34. E. 3. Bro. Cui in vita 15. No prejudice to them that it be good 35. H. 6. 41. b. 18. Eliz. cap. 7. 3. H. 7. f. 1. 6. Oblitum Another of 60 to exempt froÌ„ being compelled to serve by the stat of labourers 23. E. 3. cap. 1. W. 2. cap. 38. 13 Ed. 1. no. na br 165. â— Devises f. 97. No good reason for one may make an ill account specially having a childes direction for his doings 9. H. 6. f. 6. 2. H. 4. 22. 40 Ed. 3. 44. 37. H. 6. 5. 11. H. 6. f. 40. 6. Co. lib. 5. f. 29. P. M. 41. 42. Eliz. Co. lib. 5. fo 29. But payment is to bee made to the Exec. not to the adm M. 15. 16. El. in com ba. rep 67. Co lib. 5. fo 29. Co. lib. 6. fo 671. H. 26. Eliz. 16. H. 6. ret 45. 21. Ed. 4. 13. 24. Co. lib. 5. fo 27. Notes of 〈◊〉 called acquittances Quaeâ—â— If the executor give it to another the legetee hath no remedy at the Common Law per Prisot 37 H. 6. 30. Welâ—den and Elkington Paramour and Yardley Poâ—tman and Simmes case Trin. 37. Eliz. All but Gawdy so agreed 21 Eliz. D. 367 Co. lib. 3. fo 29 6 H. 7. 5. If the bequest be to one of the executors he may take it without assent of his compan yet if a det his compan may release it 48 E. 3. 14 15. So held where but one of the executors during nonage assented in the case of Rhetorick and Chappel H. 9. Jacobi Ror 895. in ba. reg C. See Co. lib. Intr 150. the executor being devisee for life said the other should have it after her death and he entred and tooke admin she dying intestate yet held Assets in him This M. 19 H. 7. Rot. 318. See lib. Intr. 321. One gave the third part of his goods to A with whoÌ„ the exec accounted for the amount and Asued for that summe in det but no judgement upon demurrer Tr. 37 Eliz. in ba. reg Wherebe quests to exec himselfe Tr. 37 Eliz. If he by will bequeath it to I. S. this is an election to have it as legatee So if the exec take a new leas his assent after is void Tr. 37. Eliz. in Carters case 19 Eliz. D. 359 14. H. 8. 23. Dy. 359. After choice once made no variation Plow Com. 520. 542. Both Alexander and Ralfe were executors but that makes no difference Windsmore Holford vel Holbord in 28 29. Elizab. argued and Tr. 29. Eliz. adjudgâ—â—â— 28 H. 8. Dy. fo 7. Ploud 545. 6. Co. lib. 10. f. 47 Plowd Com. 521. In Bret Rigdens case So of common or other profit 99 Eliz. Fulses case Lampets case Co. l. 10. fo 48. 9 Point Plowd 520. Welâ—den and Elkington 10. El. D. 277 19 Eliz D. 359. Cont. â— El. D. 253. 33 H. 8. Bro. chatelx 23. Weleden Elk. ubi supra But there the point was never queâ—tioned though such death was there 10. Point Of forfâ—iâ—ure revocation and other losse of legaâ—ie Swinb de testam 352 353. Except as tutor or guardian he accuse it Sum. Silv. 284. De testam 25â— De testam 255 Vide Bro. Devise 27. 45. thâ—re were divers dayes of payment and the devisee dyed before the last his executor shall have it 14. vel 24. H. 8. 36. H. 8. 3 El. Dy. 59. See this difference Sum. Silv. 283. According hereto vide Dy. ubi supra per majorem opinionem Justiciat Acts of the testator Sum. Silic 285. Ord. 27. Iun. a. 2. Caroli regis To helpe this was the Stat. made 27. Eliz. capâ— 6. H. 8. cap. 9. Tr. 41. Eliz. Co. lib. 5. fo 1â— B. San ders Case Vide Plow com of an action of tresp against a stranger for taking before assent 280. b. P. 25. Eliz. 48. E. 3. 15. 14. Eliz. Dy. 307. conte in a grant 31. Eliz. Sum. Silv. 286. Ibid. ut suprâ— Ibid. ut supra Yet 48. E. 3. 14 15. It is admit that such a divisee of all goods after debt paid shall have a duty resting in account Quae. 36 Hen. 8. Dy. 59. Dy. ib. supra Sum. Silv. 286. Ibid. Ibid. Ibid. b. Ibid. Ibid. Sum. Silv. 286. Ibid. 287. Ibid. 286. Ibid. 284. a. 15 Eliz. Dy. 331. Plow Com. 545. b. Co. lib. 8. 96. a. By deed or word in life 4 E. 6. Bro. Done c. 43. Tr. 37. Eliz. in ba. reg Portm ver Simmes or Willis divers times argued Cap. 28. 4 E. 3. cap. 7. So the stat 5 R. 2. ca. of forf of goods by those who go beyond the Sea cap. 16. In all these goods are comprehended 13 H. 7. Kelw. rep 35. a. Low and Carters case Tr. 37. Eliz. in ba. reg See Plow 184. a Debt against the Executor of an Executor 19 Ed. 1. 14. Ed. 3. Fitzh Executor 87. 103. 11. Ed. 3. 13. Ed. 3. Fitzh Ex. 78. 92. 25. Ed. 3 cap. 5. 19. H. 8. 9. 10. 4. El. Dy. 210. 32. H. 8. cap. 37. So 32. H. 8. 28. leases And 32. H. 8. cap. 34. Conditions 13. El. cap. 5. 27. Eliz. cap. 4. Of fraudulent conveyances 21. H. 8. cap. 15. for falsifying recoveries 39. H. 6. 45. 7. E. 3. 62. 2 Cor. 8. v. 14.