land after the death of his Wife in this case the Wife by the favourable interpretation of such Will shall have the land for term of her life Finches Law pag. 172. 13 H. 7. 13. Terms of the Law verb. Devise Cowels Inst pag. 144. Swin part 4. sect 4. Noyes Maxims pag. 100. 230. If a man devise all his lands in A. to his two Daughters and makes them Executrixes and afterwards purchaseth more lands in A. and then dies without a new publication of his Will and expressing of this land newly bought therein in this case this land newly bought doth not pass by the same Will H. 43 El. C. B. Beckford and Parncotes Ca. Goldsboroughs Rep. pag. 150. pl. 77. 231. A man having four Daughters A B C and D devises his lands to his Wife for her life and after her decease the same to be equally divided amongst his Daughters or their Heirs A one of the Daughters died before the Mother and after the Mothers death the heir of A sued for a fourth part and adjudged for the Heir by vertue of the disjunctive or but if it had been to have been divided amongst his Daughters and their Heirs this word had altered the case and would have given the Fee to the three surviving Sisters Mich. 1 Car. 1. B. R. Rot. 189. Taylor and Hodgskies Case Godbolts Rep. fol. 363. 232. If one devise his lands to another Man and his Heirs and the Devisee dieth in the life-time of the Devisor and afterwards the Devisor dieth in this case the Heirs of the Devisee shall not have the land Plo. Com. fol. 342. in Brett and Rigdens Case 233. If a man seized of lands in Fee sowe the same with Corn and afterwards deviseth the land to A B and dieth before the Corn be severed in this case the Devisee shall have the Corn a swell as the land but it is otherwise where the lands descend to the Heir for the Executors or Administrators shall have the Corn sown at the Testators death Mich. 20 Jac. C. B. Spencers Case Winches Rep. fol. 51. 234. A man devised his Messuage whereof he was seized in Soccage in Fee by these words I devise my Messuage where I dwelt to my Cozen H and her Assigns for eight years and my Cozen H shall have all my Inheritances if the Law will and this was adjudged a good devise in Fee of the Messuage and by the general words of the Will all the Inheritances pass also Mich. 11 Jac. C. B. Wedlock and Hardings Case Godbolts Rep. fol. 208. 235. If a man devise his Lands to the Heirs-Males of any of his Sons or next of Kin such a devise is void for the uncertainty thereof Hil. 2 Car. 1. C. B. Rott 1288. in Hunt and Fishers Case and Trin. 1649. B. R. Rott 849. Beal and Wymans Case Styles Rep. fol. 240. 236. A man having Lands in Fee-simple and Goods to the value of five pounds onely deviseth to his Wife all his whole Estate paying his Debts and Legacies which amounted to forty pounds in this case it was adjudged that all the lands did pass by the devise and that the Wife had a Fee-simple in the lands the word paying enforcing it for they are to be paid presently which cannot be if the land pass not in Fee Tr. 1651. B. R. Kirman and Johnsons Case Styles Rep. fol. 293. and see 29 H. 8. Bro. Testament 18. 237. A seized of three Houses and other Lands Pastures and Meadows in W in the County of H and of Land in the County of O devised in this manner viz. I give my Capital Messuage in the Counâ—y of O and all other my Lands and Meadows and Pastures in the Parish of W to such an one and adjudged here that all the houses passed by the devise for that lands comprehends houses also Ewer and Heydons Case Abr. Mores Rep. pag. 103. pl. 468. 238. If a man devise the profits of his lands it is a devise of the lands themselves Tr. 16 Jac. C. B. Rott 465. Balder and Blackbornes Case Brownlo 1 part 79. Owens Rep. 66 Tr. 23 Car. Styles 81. 239. A man by his Will deviseth his lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of twenty one years and if the Issue die before that age or before his wife or if she hath no Issue that then she shall chuse two Attorneys and sheto make a Bill of sale of any lands to her best advantage In this case it was resolved that the wife hath those lands for life and she having no Issue hath not any interest to dispose but hath an authority to nominate two who shall dispose of the lands and they shall make sale of them Mich. 5 Jac. B. R. Beal and Shepherds case Bro. 2 part Rep. fol. 199. 240. I might go on to shew what words in a Devise make a Condition and what a Limitation and where an estate shall pass by Implication and what words make an estate Tayl Fee-simple or for Life and where the Devisees shall be Joyntenants and were Tenants in Common with several other things but it not being the intent of this Treatise I refer the Reader to the learned Reports now extant where he may be satisfied and so I return again to my purpose 141. Devises and Legacies are to be sued for in the Ecclesiastical Court but the Ordinary cannot take Cognizance of Fees or Free-hold devised but a Prohibition will lye if any Judge of any Spiritual Court shall cite one before him in case of such a devise as intrencheth upon the Common Law Perkins sect 576 579. and Dr. and Stud. li. 2. cap. 55 Cowels Inst pag. 146. 242. Note there may be much deceit used by a knavish Executor and though the Goods be of a great value after the Debts are paid which were truely owing and due by the Testator yet he may keep the Legacies and never pay them perhaps but pretend that all the Debts are not paid and thereupon may cause Strangers to sue and then alledge that there are more Suits against them then the Goods of the Testator are sufficient to satisfie or they may confess the Actions brought against them and several other ways there are whereby they may defraud the Legatees of their Legacies Therefore it were good for Testators in their life-times either to secure the Legacies to the Legatees by some sure means or otherwise in their life-time to deliver the same that they see them possessed thereof and not leave it to the Will of the Executor Perkins sect 571. CHAP. IX Several Cases concerning the Duty of an Executor 243. THere are three kinds of Executors or persons which have to deal with the Execution of dead mens Wills and disposition of their Goods The first hath his Authority from the Law and that is the Bishop or Ordinary of every Diocess who hath the execution thereof when no Executor is appointed by the Testator
Quest 86. num 11. 18. The third kind of priviledged Testaments are those which are made to pious uses as when one gives his Goods to be distributed to poor Orphans Widows Strangers Prisoners lame and diseased poor persons or to Hospitals Churches repairing of Bridges or the Walls of a City or Town when the same be decayed and stand in need of repairing and to such Testaments belong many priviledges also As first it may be written with strange and unaccustomed Characters and Notes and yet the same shall nevertheless be as effectual as if the same had been written after the usual and accustomed manner Also if such a Testament be found cancelled and it is not known whether the Testator did willingly and wittingly cancel the same or no in this Case it shall be presumed to have been cancelled unadvisedly and shall take effect notwithstanding as if it had not been cancelled at all whereas in other Testaments the contrary is presumed And another Priviledge is That such a Testament is not void for incertainty as other Testaments are and therefore if the Testator say I make the Poor my Executors or I Will that my Goods be distributed amongst the Poor such manner of appointing Executors or Legacies is good Also if there be two Testaments found of divers Tenors and it doth not appear which is last in this Case if one of them be made ad pias causas that shall be presumed to be last made and take effect unless the other Testament be inter liberos and then that shall be deemed last not the Testament ad pias causas There are several other Priviledges reckoned up by some Authors to belong to this kind of Testament for Tiraquel in Tract De Privilegia piae Causae reckons up 170 Priviledges belonging to such Testament but most of them are here in England allowed to all Testaments though they be not made ad pias causas Franc. Mantic. de conject ult voluntat l. 6. Tit. 3. num 3. 43. l. 12. num 30. Tit. 1. Tit. 2. num 25 32. Swin part 1. sect 16. part 7. sect 8. num 8. sect 16. in fin Tiraquel de privilegia piae causae c. 12 16 56. 19. Unpriviledged Testaments are those which have not any Freedom or benefit contrary to the common course of ordinary Law but are tie◠to such observations as the Law requireth and hath appointed regularly for all Testaments Swin part 1 sect 17. 20. Now having spoken something of Testaments Solemn and Unsolemn Written and Unwritten Priviledged and Unpriviledged I shall speak a word or two of Wills and Codicils and so conclude this Chapter 21. The definition of a Last Will differeth but little from that of a Testament for a Last Will is thus defined Ultima voluntas est legitima dispositio de eo quod quis post mortem fieri velit A Last Will is a lawful disposing of that which any one would have done after death Franc. Mantica de conject ult voluntat l. 1. Tit. 4. num 18. Swin part 1. sect 4. 22. There is also another kind of Will called a Codicil and is defined after this manner Codicillus est voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit absque Executoris constitutione A Codicil is a just Sentence of our Will touching that which any one would have done after his death without the appointing of an Executor by force of which last words a Codicil is made to differ from a Testament for a Testament can no more consist or be without an Executor then a Codicil can admit of an Executor Swin part 1. sect 5. num 2. Franc. Mantica de conject ult voluntat l. 1. Tit. 8. num Justinians Inst l. 2. Tit. de Codicill is num 2. 23. These Codicils are most commonly made by the Testator after he hath made his Testament wherein he hath forgotten something which he hath a mind to put in and then it is done by way of Codicil and annexed to the Testament but whether it be made before or after the Testament it is to be taken and reputed for parcel thereof and ought to be performed as well as the Testament unless being made before the Testament it appear to be revoked in the Testament or be contrary to that which is contained in the Testament Reformatio Legum Ecclesiasticum Tit. de Testam cap. 5. Swin part 1. sect 5. num 11. Justin Inst l. 2. Tit. 〈◊〉 Codicill is num 1. Vigel method Jur. Civilis part 4. l. 9. cap. 23. in principio 24. When a Codicil is made by one that dieth Intestate the Legacies therein given must be paid by him that hath the Administration of the Goods of the Deceased as if he were Executor Bro. Abra. Tit. Devis numb 35. Swinbor part 1. sect 5. num 10. 25. In some respects Codicils and Testaments are quite contrary to one another for whereas a man cannot die with two Testaments because the latter doth always infringe the former except in some special Cases yet a man may die with divers Codicils and the latter doth not hinder the former so long as they be not contrary to one another Also where two Testaments are found and it doth not appear which was first nor which is last in this Case they are both void except in special Cases as is shewed before Numb 17 18. But if two Codicils be found and it cannot be known which was first or last and one and the same thing is given to one person in one Codicil and to another person in another Codicil here the Codicils are not void but the persons therein named ought to divide that thing betwixt them by the Civil Law Michael Grass The saur commun opinion sect Codicillus Swin part 1. sect 5. in fine CHAP. II. What shall be a good Testament or Will and what not 26. THat Wills and Testaments may lawfully appear it i◠necessary that there be sufficient proof either by writing or by witness and as to that know that two Witnesses are sufficient if they be without lawful exception Cowells Inst p. 118. Waterhouse on Fortesc fol. 350. Glan l. 7. c. 6. Bract. l. 1. c. 16. Swin part 4. sect 21. numb 2. 27. That is if they be not perjured persons or persons of infamous life as Malefactors or Law-breakers or Children Idiots Lunatick persons or of the Kindred or Alliance or Tenants or Servants to the party producing them or Capital Enemies to the party against whom they are produced or persons who are to reap benefit by their depositions or such like c. Cowel on Litt. fol. 6. Swin part 4. sect 21. Maschard de probat verb. princ Conclusio 1168. verb. Criminosus Conclus 469. verb. Furiosus Conclus 828. Swin part 4. sect 21. numb 7 8 9 10. Ref. Legum Eccles Tit. de Testamentis c. 17. Waterhouse on Fortescue fol 357 and 358. 28. But if the
reason of incertainty because it is a Testament ad pias causas By the Poor therefore is understood the Poor of the Parish where the Testator did dwell and keep house and the Ordinary is to take care that the Poor have their due according to the meaning of the Testator Also if the Testator bequeath any goods or money to the Parishioners of any Parish to the use of the Church such a Bequest is good and the Legacie may be recovered by the Churchwardens who albeit in every respect they be not a lawful Corporation yet in this respect in favour of the Church they are accounted a lawful Corporation And where it is said that unlawful Colledges or Companies c. not Incorporated by the Kings Authority cannot be Executors yet in such case if the several and particular persons by name of an unlawful Colledge c. be appointed Executors they are not to be repelled Franc. Mantica deconject ult Volunt li. 8. tit 5. num 2. â—iraquel tract de privileg piae causae privileg 56. Lambert Tract de Officio Gardianarum fo 43. Bro. tit Corporation num 55 73 77 84. Fulb. li. 1. fo 42 43. Swin part 7. sect 8. 100. If the Testator make his own kin his Executors in this case those of kin who are nearest to him and should have had the Administration if the Testator had died Intestate shall be first admitted and enjoy the Executorship during their lives and after their deaths then the other next of kin to the Testator is to be admitted successively one after another and not all together but if the Testator make another mans kindred his Executors in such case they are all to be admitted together to the Executorship Simo. de Praetis de interp ult Volunt li 3. fo 91. num 28. Mich. Grass thesaur com opin sect Instit quaest 20. sect Fidei commiss quaestio 16. sect Legat. quaest 41. Swin part 7. sect 8. num 10. 101. Where the Testator makes the next of his kin his Executor and dies without issue of his body in this case the father or mother if living shall have the Executorship as next of kin to their son contrary to the Judgement given in the 5 E. 6. in the Duke of Sussolk's Case which Case is now over-ruled and not held for Law Co. 3. lib. fo 40. in Ratcliff s Case there Cowels Inst p. 40. Trin. 22 Car. 1. B. R. Styles Regestum practicale p. 21. Swin part 7. sect 8. in fine 102. If the Testator say I make A or B my Executors in this case it is all one as if he had said I make A and B my Executors unless it be where the Testator bears more affection to the one then to the other and then he which he bears most affection to shall be preferred as where the Testator makes his brother or John at Style his Executors in this case the brother shall be first admitted and after his death then John at Style if he be living shall be admitted Also where one of the persons so named is incapable then the dis-junctive standeth properly and the other shall be admitted alone to the Executorship Jul. Clar. sect Testament quaest 80. num 5. Swin part 7. sect 9. 103. An Excommunicate person so long as he standeth in the Sentence of Excommunication is not to be admitted to an Executorship by the Ordinary nor can he commence any Suit there for his Legacie Michael Grass thesaur com opin sect Institutio quaestio 4. Swin part 5. sect 6. 104. Bastards begotten and born in Adultery or Incest are not capable of any benefit by the Testament or Last Will of their Incestuous or Adulterous parents except there be onely so much bequeathed as will suffice for their competent Alimentation or Relief that is to say for their Food Clothing Lodging and other meet and convenient necessaries according to the degree and ability of their parents or that it be in case of Lands Tenements and Hereditaments for there a man may by his Testament or Will in writing devise to his Bastard all his Lands Tenements or â—ereditaments and such Bastard may sue for the same and recover them and so it was adjudged in the Lady Griffins Case upon the Testament of Sir Francis Wortly who devised all his Lands to his base daughter Mich. 18 Car. 2. B. R. Mich. Gâ—â—ss thesaur com opin sect Instit quaest 7. Gabr. com Conclus li. 6. tit de Aliment conclusio 1. num 5 31. Menoch praesump li. 4. praesumptio 157. num 3. 32 H. 8. c. 1. Brac. li. 2. c. 7. Swin part 2. sect 17. part 5. sect 7. 105. Note also that these incestuous or Adulterous Bastards may be Executor to any other person saving to their natural parents and are capable of a Legacie bequeathed to them from any other person yea even to their own Incestuous or Adulterous brethren they may be Executors or receive any other Testamentary benefit from them Jul. Clar. sect Testament quaestio 31. num 4. Swin part 5. sect 7. 106. Also where they are appointed but onely bare and nude Executors and receive no benefit by the Testament in such case they be admitted Executors to their own natural parents Simoâ— de Praetiâ— de interp ult Voluntâ— li. 5. fo 17. num 27. Swin part 5. sect 7. 107. The Adulterous Grandfather may bequeath any thing to the lawful children of his own unlawful sons or daughters or make them his Executors but so cannot the Incestuous Grandfather Covar in D. cap. 8. de Sponsal part 2. sect 5. num 13. Bald. C. de Incest Swin part 5. sect 7. 108. Several other persons there are who by the Civil and Ecclesiastical Laws are prohibited Testamentary benefits but being that I finde little or no mention made of them either in our Common or Statute-Laws which limit the power of those Spiritual Courts here in England I shall therefore pass them over in silence and proceed to the next Chapter CHAP. V. Of the several ways of appointing aâ— Executor 109. TO name or to appoint one as Executor is to place one in stead of the Testator who may enter to the Testators goods and chattels and have an Action against the Testators Debtors and may dispose of the same goods and chattels towards the payment of the Testators Debts and performance of his Will which if he neglect to do he may be sued by the Creditors or Legataries so long as he hath Assetts in his hands Noys Max. p. 101. Terms of the Law verb. Executor Swin 4. sect 2. 110. Now this naming or appointing an Executor is the head of the Testament and as the body is dead that lacketh an head so the Testament is as it were dead that lacketh an Executor for it is the foundation of the Testament and no Testament can stand without it or be called a Testament and though there be never so many Legacies or Devises given therein yet it is but a Codicil or Will and not
of her Husbands Lands holden in Gavelkinde Co. on Litt. fol. 111. Old Terms of the Law verb. Gavelkinde 166. And of Lands held in Burrough English by the custom of some places the Widow shall have the whole and sometimes the half of her Husbands Estate Dum sola casta vixerit Co. on Litt. fol. 111. F. N. B. 150. Litt. li. 2. cap. 10. 167. By the Stat. 32 H. 8. cap. 1. every one except a woman Covert an Insant under the age of one and twenty years or a person De non sane Memorie may be their last Will and Testament in writing or other Act lawfully executed in their life-time give dispose Will or devise all such Lands Tenements and Hereditaments as they are solely seized of in Fee-simple or as much as of right in them is of all such Lands Tenements and Hereditaments as they are seized of in Fee-simple in Copercenary or in Common in Fee-simple to any person or persons except to Bodies politick and corporate And two parts of three of all such Lands Tenements or other Hereditaments as they hold in Knights service See now the 12 Car. 2. cap. 24. 32 H. 8. cap. 1 34. and 35 H. 8. cap. 5. Fynch Law pag. 169 170. Co. on Litt. fol. 111. b. Swin part 3. sect 3 and 4. And Wingates Abr. of Stat. tit Wills 168. All manner of Goods and Chattels real and personal moveable and immoveable may be devised by Will or Testament except in some certain cases following Perkins sect 511. Lind. in C. Stat. de Testament li. 3. Provinc Const Cantibr Swin part 3. sect 5. Cowels Inst pag. 140. 169. As where two men are joyntly possessed of Goods and Chattels real or personal one of them cannot make his Will and bequeath his part to another for when he dyes his part goes to the survivor and so it is in Lands Tenements and Hereditaments also Perkins sect 500 526. Dr. Stud. li. 1. cap. 6. Litt. li. 3. cap. 3. Cowels Inst pag. 140. Clerk of Assize pag. 63. 170. Nor can a Spiritual person or Master of a Colledge or Hospital or Mayor of a City devise those things which belong to their Church Colledge Hospital or City nor can the Crown or Jewels of the Realm be devised by Will but they may be given by Letters-patents and a Parson by Will may devise the Corn growing on the Glebe-Land at the time of his death Perkins sect 496 and 497 498. Brac. 1. li. 1 2. cap. 14. Dr. Stud. li. 2. cap. 39. Cowels Inst pag. 125. F. N. B. devise 5. Exer. 108. Swin part 3. sect 6. 171. The Husband cannot devise such Goods as his Wife hath as being Executrix to another nor such things as are in Action as debts due to her before Marriage by Obligation or Contract unless he and his Wife sue and recover the same during Marriage or that he renew the Bonds and take them in his own Name otherwise after his death they remain to her Co. on Litt. fol. 351. b. 9 H. 6 52. 21 H. 7. fol. 29. Kitchin fol. 251. a. Finches Law pag. 44 168. Bro. Testam 11. Swin part 2. sect 9. num 13. 172. Also if the Husband be possessed of a Terme or Lease for years in right of his Wife he cannot devise it by his VVill but he may grant it away or dispose of it in his life-time or if he make no disposition thereof yet if he survive her then it falls to him and in such Case he may devise it by VVill. Dame Hales ca. Plo. com fol. 260. Co. on Litt. fol. 251. a. Kitchin pag. 267. b. 7 H. 6 1. Perkins sect 560. Dr. Stud. li. 1. cap. 7. 173. An Administrator cannot devise those Goods by VVill which he hath as Administrator to another person dying intestate but Administration thereof shall be committed to the next of Kin to the first Intestate neither can an Executor devise those Goods by way of Legacy which he hath as Executor but he may make his Testament and appoint another Executor who shall have the Administration of the same Goods to the use of the first Testator Fynches Law pag. 168. Bro. Adm. 7. F. N. Br. Adm. 3. 31 E. 3. cap. 11. Plo. com fol. 525 526. Swin part 3. sect 6. 174. Those things also which belong to the Heir after the Testators edath cannot be devised by VVill as Glass-windows VVainscote Tables dormant and Benches affixed thereunto or mortifed in the Earth Furnaces Coppers Leads Ovens c. set in Morter or Stone nor Trees nor Grass growing c. Bro. Exer. 65. Cowel Inst pag. 140. Co. 4. Rep. fol. 62. Swin part 3. sect 6. Noyes Max. pag. 106. 175. But Corn growing on the Land at the time of the Testators death may be devised by VVill by those who are seized in Fee-simple Fee-tail or for life and also by Tenant in Dower Tenant by the Curtesie and Tenant in Mortgage and their Tenants and he who is seized in right of his VVife although theiâ— Estates do determine before the said Corn be ripe and severed except in some special Cases Perkins sect 512 514 522. Dr. Stud. li. 1. cap. 20. 176. If a woman Tenant in Doweâ— sow her Land and afterwards marry and the Husband dyes before severance of the Corn in this Case it remains to her and he cannot devise it but if it had been sown after the Marriage he might have devised it Clerk of Assize pag. 57. Abr. Dr. Stud. li. 1. cap. 20. 177. If Tenant for life have Hops growing and dye a little before the severance of them in this Case the Executors or Administrators shall have them and not he in Reversion or Remainder for the Hops are accounted as Emblements they growing by Manurance and Industry of the Owner by the making of Hills and setting of Poles Vide Miâ—h 11 Car. 1. B. R. Latham and Attwoods Case Cro. 1 part fol. 396. 178. As Goods and Chattels may be devised as aforesaid it is now further observable what a quantity or proportion of Goods and Chattels the Testator may devise by his VVill observe therefore that if the Testator have neither VVife nor Childe at the time of his death hâ— he may then dispose and devise alâ— the cleer residue of his Goods and Chattels over and above the discharging Funeral-expences and hiâ— debts Lindwood in C. Statut. dâ— Testament li. 3. Pro. Const. Cant. verbum defunct Brac. li. 2. cap. 26. Swin part 3. sect 16. 179. But it is the custom of many places especially within the Province of York that if the Testator have a Wife or Childe at the time of hiâ— death that then he can but dispose of half of such his cleer Goods and the other half is to go to the Wife or Childe and if he have both a Wife and Childe or Children at the time of his death then the Goods are divided into three parts whereoâ— one part is to the VVife another
Goods in his hands of the first Testators the surviving Executor may have an Action against him for the same and if the surviving Executor do afterwards dye intestate yet cannot the Executor of the Executor meddle with the Goods of the first Testator but Administration thereof is to be committed to the next of Kin to the Testator and if the Executor of the Executor or who dyed first meddle with the Goods then he may be sued by the Creditors as Executor in his own wrong Bro. Exec. 92 99 149 160. Swin part 4. sect 20. 259. If one make another his Executor and dyeth and the Executor before he hath proved the Will maketh another his Executor and dyeth in this Case Administration of the first Testators Goods with the Will annexed shall be committed to the next of Kin of the first Testator and not to the Executor of the Executor unless the first Testator did bequeath his Goods as his Debts Funeral-expences and Legacies paid to the Executor named in the Testament and then in such case the Administration of the first Testators Goods is to be committed with the Will annexed to the Executor of the Executor Dyer fol. 372. num 42. M. 23 El. Isteds Ca. Swin part 6. sect 3 260. Note that if divers be appointed Executors and one of them doth sell some of the Testators Goods for a sum of money then that Executor which sold the Goods may sue alone for the money due for the same Swin part 4. sect 20. Bro. Exec. num 65. 261. Where divers persons are made Executors and the Testator gives them power to sell his Lands in this case though some of them dye or do refuse the Executorship yet the others who take upon them the charge and burden of the same Testament and Will may sell the Lands except in some Cases Perkins sect 545. Pasch 46 E. 3. Devise 8. 21 H. 8. cap. 4. 39 〈◊〉 pl. 17. Co. on Litt. fol. 113. Swin part 6. sect 3. Dyer fol. 371. See Howel and Barnes case Mich. 10 Car. 1. Cro. 1 part 262. As where the Testator Deviseth that after his death his Lands shall be sold by his Executors with the assent of A B maketh his Wife and a Stranger his Executors and dyeth and then the Wife dyeth and A B also in this Case the Authority of selling the Lands is extinct and gone by the death of A B without whose consent it cannot be sold and therefore if the surviving Executor should sell such sale is void Brownlowes part Rep. fol. 100. Mich. 5 Eliz. Dyer fol. 219. Fulb. fol. 41. Swin part 6. sect 3. 263. But if a man Devise by his Will that A B and C D whom he makes his Executors shall sell his Land for payment of his Debts and they refuse to be Executors yet notwithstanding they may sell the Lands because they are named by their proper names or if one of the Executors dyeth and the other taketh upon him the Executorship and afterwards selleth the Lands such sale is good 15 H. 7 12. Perkins sect 548. 19 H. 8 9. Swin part 6. sect 3. 264. But where a man by his Will maketh A B C and D his Executors Devises his Lands to the said A B C and D by their special names and to their Heirs and further deviseth that the Devisee shall sell his Lands for payment of his Debts and one of the Executor refuses to intermeddle in this case it hath been held that this being a special and joynt interest the other three Executors thereupon cannot sell without their Compaâ—ion Mich. 29 Eliz. B. R. Bonnisant and Sir Rich. Greenfields case Godbolts Rep. fol. 77. And sec 26 El. B. R. Vincent and Lees case Co. on Litt. fol. 113. 265. My Lord Cooks advice is to such who devise by their Wills their Lands to be sold that they make it as certain as they can as that the sale be made by his Executors or the Survivor or Survivors of them if his meaning be so or by such or so many of them as take upon them the Probat of the VVill c. and it is better to give them an Authority then an Estate unless his meaning be they should take the profits of the Lands in the mean time and then it is necessary that he deviseth that the mean profits be assets in their hands for otherwise they shall not be Assets Co. on Liâ—t fol. 113. 266. If a man devise his lands to be sold by his Executors and to distribute the profits to Pious uses yet after the death of the Testator the Inheritance shall descend to the Heir and shall remain in him until the Executors sell the same and the Heir ought to receive the profits thereof till the time of the sale but if the Testator devise his lands to his Executors which he willeth to be sold and the money to be distributed to Pious uses here the Executors after the Testators death shall receive the Profits and not the Heir for in the first case the Executors have only an Authority to sell and in the last case they have the frank-Tenement Brownl 2 part Rep. fol. 136. Noyeâ— Max. pag. 100 101. 38. Ass Pl. 3. Perkins sect 541 and 543. Swin part 6. sect 3. num 7. Cowels Inst pag. 139. 267. Note that the Executor of an Executor cannot sell the land of the first Testator who by his Testament gave power to his Executor to sell the same but it shall go to the Heir unless the Will be otherwise Bro. Tit. Executor 3. Perkins sect 507 554. Swin part 6. sect 3. num 11. in fin 268. If a man willeth that his Executors shall joyntly sell his land or that his Executors and his Feoffees shall joyntly sell his land in such case if one Executor sell to one and the other to another or if the Executors sell to one and the Feoffees to another and afterwards they joyn in the sale to a third person in such case the last sale onely is good and the other voyd Perkins sect 546 and 553. 269. If a man willeth his lands shall be sold for the payment of his Debts and express not by whom it shall be sold then the Executors shall sell it but if he willeth his land to be sold and express not by whom nor for what in such case it hath been held that such Devise is void and the land shall not be sold but descend to the Heir Perkins sect 547. 15 H. 7. 12. 270. The Executors or Administrators of Tenants in Fee-simple Fee-Tayl and Tenants for term of life of Rent-services Rent-charges Rent-sects and Fee-farms by the Stat. of 32 H. 8. may either distrain or have an Action of Debt against such Tenant as is behind and in Arrear to the Testator at the same time of his Death for such Arrearages of Rent as ought to have been paid to the Testator in his life-time and if the Tenant who was in arrear be dead then they may