Selected quad for the lemma: life_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
life_n	die_v	lease_n	tenant_n	4,724	5	10.2267	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A65445	The office and dutie of execvtors, or, A treatise of wils and executors, directed to testators in the choise of their executors and contrivance of their wills with direction for executors in the execution of their office, according to the law, and for creditors in the recovery of their debts : expressing the duty, right, interest, power and authority of executors, and how they may behave themselves in the office of executorship : with divers other particulars very usefull, profitable, and behovefull for all persons, be they either executors, creditors or debtors : compiled out of the body of the common-law, with mention of such statutes as are incident hereunto.	Wentworth, Thomas, 1568?-1628.; Doddridge, John, Sir, 1555-1628.	1641 (1641)	Wing W1358; ESTC R15205	180,173	328

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

no remedy appeareth for the Conusee to have execution of the Goods of the Conusor but onely of his Lands If this should be thus it were a very mischievous case for many bound in Statutes have no Lands but Leases and goods of great value and if by their death their Goods and Chattells should be set free from this Statute and the Creditor without remedy the Law were very defective and it were so much the more strange in this Case because the Statutes of Acto● Burnell and Mercatoribus seeme to pitch principally upon Goods and to tend unto assurance betweene Merchants who usually are not Landed men But that the Law doth give remedy in such Case as well against the Goods as Lands of the deceased Conusor appeares by the resolution of late made in what Order and Precedence Statutes are to be satisfyed by Executors as after wee shall see Of Debts by Contract without Deed as Leases Paroll c. COntracts are of diverse kindes and we will begin with those in the realty as most worthy If therefore one be Lessee for yeares or for life without any Indenture or Deede as he may be and his Rent being behinde he dyeth now is the Executor lyable to the payment of this Rent without any Specialty for that his Testator if he had beene sued in his life time could not have waged his Law But if the Less●e for yeares in his life time sell or grant away his terme or Lease although he still lye at the stake for the Rent to grow due after untill the ●essor accept the Assignee for his Tenant Yet if the Lessee dye his Executor shall not be charged for any Rent due after the death of his Testator But what if the Lessee doe not Alien or assigne his terme but dye thereof possessed and the Executor perceiving the Land not to be worth the Rent Waiveth the same Yet the Lessor will not enter thereinto nor intermedle therewith whether may he yet charge the Executor with the Rent during the terme I answer that if he have assets that is sufficient for payment of this and other debts he cannot Waive this Lease but shall be tyed to answer this rent though much more then the Land is worth for the taking of the Lease is much of the nature of an Obligation to pay money Yet because it is yearely Executory the Executor may Waive it in case his Testators estate will not supply and beare that losse But what if there be assets to beare this yearely losse for some yeares but not during the whole terme I think in this case the Executor must pay the Rent so long as this Assets will hold out and then must Waive the possession giving notice to the Reversioner and this I thinke he may doe well enough notwithstanding his Occupation of the Land divers yeares after the Testators death because that was not voluntary but as of necessity yet this I leave as a Quaere to be well advised of with good counsell Of contracts personall VVHere the Testator might wage his Law there the Action lyeth not against the Executor as hath beene touched and therefore he is not chargeable in an action of debt upon a simple contract as by reason of this or that to his Testator yea though it were the Inheritance of Land which was sold so as the sale were without Deed or though by Deed yet if no counterpart were under the hand of him to whom the sale was made And the custome of London to the contrary viz. that an Action of debt should be maintained against Executors upon a contract was held void at least no Good plea against other Creditors that such a debt was recovered against the Executor or paid by him as was towards the latter end of the late Queenes time resolved though in the beginning of her time it was a demurrer Yea though such a debt grew for the most necessary thing viz. meate and drinke which bindeth even an Infant to payment yet will it not charge the Executor of a man of full age but this is meant where the contract was onely by Word for where the Testator putteth his Seale to any Deede or Writing made upon such sale this is more then a simple Contract and taketh from the Vendee his wager of Law and so chargeth the Executor But if the Testator seale but unto a tayle or tally with scotches expressing a de●t this is no such Specialty as shall cha●ge Executors Yet in some Cases without any seale at all the Executor is chargeable But although no Action of debt lyeth against the Executor upon such a simple contract yet may the Creditor in that case maintaine an Action upon the Case grounded upon the assumption implyed though not expressed as now standeth resolved by all the Judges of all Courts at Westminster though heretofore there hath beene much difference of opinion thereabout And indeed thus the Executor is charged in matter for a simple contract though not in manner of a Debt but as for breach of promise making recompence in dammages instead of the debt And the chiefe reason for it is because the Testator could not have waged his Law in this action upon the case against himselfe though in debt he might Where the Testator retaineth servants in Husbandry or otherwise and dyeth there being wages due to these so retained the Executor is lyable to an action of debt for the same by reason that the parties were compellable by Statute thus to serve and therefore the Testator could not have waged his Law but in case of Servants not compellable as Wayters or Servingmen as wee call them no action of debt lyeth against the Executor for their wages though against the Testator himselfe it doth for the Contract is sufficient to charge him who made it See of account after Where Executors shall be charged without either Contract or Special●y VVHere a Prisoner oweth money to a Jaylor or Keeper of Prison for his dyet or victualls and dyeth his Executor shall be chargeable for this debt because it is for the Common wealth to have Prisoners kept which cannot be without affording them victualls Also where one hath a Pattent or Tally of the Exchequer to receive money of some Customer Receiver or other Officer of the Crowne and delivereth it to him he then having money of the Kings in his hands if he pay not the same but dye his Executor shall stand chargeable with the payment thereof So for Arrerages of Account before Auditors if more then one but this is debt of Record in Law So if any Lord of free Tenants doth levy ayde of them for the marriage of his eldest Daughter and he dye before she be marryed she may recover this money by an action of debt against his Executor but

Grand distresse and the Executors appearing thereupon It hath beene many times ruled that when he or they appeare upon the Attatchment Capias or Exigent answere must be though the rest appeare not for so the word Distresse is taken for all compulsary meanes or enforcement of appearance But where the Statute reacheth not viz. when the Proces is determined against one or more as by Outlawry c. there the rest must answer by the rules of the Common Law except it be in the case of Husband and Wife Executor for there the Wife cannot answer without her Husband nor doubtlesse can he without her where she and not he is Executor but where both be Executors there he may answer without her but not she without him When Executors as Defendants have appeared if any one of them will confesse the Action this bindes and concludes the rest but if one will plead one plea and the other another that say some shall be received which is best for the Testators state so where they sue such as will not prosecute shall be severed and the rest without them may proceede and in like manner where they pray to be received to defend their terme and one of them after makes default it shall not be the default of all but the rest or he if it be but one who appeares shall be received to uphold the defence of the terme Thirdly so where they pleade a release to the Testator or themselves one after making default this shall not be nor make a totall default in the Executors to induce a judgement or condemnation against them Yet in truth each Executor hath the whole of the Testators Goods and Chattells be they Reall or Personall and each may sell or give the whole One of them cannot give nor release to the other his Interest and if he doe it is voide and he who releaseth shall still have as much interest as he to whom he released because each had the whole before upon this reason long since where one of the two Executors released but his part of a debt it was held that the whole was discharged and so if one Executor grant his part of the Testators Goods all passeth and nothing is left to the other for that each hath the whole and there be no parts or moyeties betweene Executors Therefore also though a lease for a thousand yeares of a thousand acres of Land come to two Executors or more no partition or division can be made betweene them because it is not betweene them as betweene joynt Lessees of Land where each hath but a moyety in interest though possession of or through the whole Amidst Executors each hath the whole and therefore if he graunt his part he graunts the whole But one Executor may demise or grant the moyety of the Land for the whole terme and so may the other doe and this way they may settle in friends or others trusted for them a moyety for each either in severall or undivided but one of them cannot make a lease to the other of any part for he had the whole nor can one sue the other as Executor yet if the Testator devise to one of his Executors all his goods after such debts and Lega●ves satisfyed there after those satisfyed that Executor may take the Goods and maintaine an action of Trespasse against the other Executor if he take them from him and consequently an Action of Detinue for keeping or detaining them but this is as Legatee his owne assent perfecting the Legacie The possession of one Executor is the possession of all the rest so as if one appearing to a Sute and the other making default in whose hands all the goods be which are not administred if I say here hee that appeares pleades that he hath nothing in his hands this shall be found against him for whatsoever any of the co-executors hath hee also hath and is in his possession and so shall the Creditor recover and have judgement to be satisfied out of the Testators goods as in his hands And therefore if goods be taken from one all may maintaine an Action of Trespasse thereupon for the possession of one is the possession of all But the possession of one shall not be so the possession of all as to charge the others owne goods wherof more elsewhere Where two Executors be made the one making a Will and executors and dying if the other die after intestate now shall not the Executor of him who first dyed be Executor to the first Testator but hee is dead intestate because the surviving Executor is so dead and in him the Executorship was wholly and soly setled by the death of his fellow before him So Administration de b●nis non admin shall be committed The Executors or Executor if but one so represents the person of his Testator that hee is in Law his Assignee by the very making of him Executor so as if one covenant to make a Lease to I. S. and his Assignes by such a time and I. S. dieth before that time and before the Lease made now must the Lease be made to his Executors as his Assigne representing his person so also in a condition to pay to the Feoffor or his Assignee yet a Lease to A. and his Assignes during the life of B. shall not goe to the Executors of A. So where in a generall pardon by Parliament there is an exception of persons outlawed after judgement unto the person so out-lawed shall satisfie the Creditor who hath out lawed him If the Out-law die before this done his Executor as representing his person may make satisfaction and so make the benefit of the pardon to extend to his Testator for saving his goods as if himselfe had satisfied his Creditor though he left him unsatisfied when he left the world d. em obiit extremum Yet where A. sold Land to B. upon Proviso that if he payed ●o B. his heires or assignes c. B. died A. payed at the day to his Executor and it was doubted that it was not good for the word Assignee could not reach to him being no Assignee of the Land and where the Executor brought an action of account upon a receipt by the hands of the Testator the Defendant could not be admitted to wage his Law for that this was held a receipt per autermains yet it is cleare that if one by Bond or Covenant tye himselfe to pay such a summe at such a day not mentioning his Executor at all yet is the Executor bound as included in the name or person of the Testator And where the Statute 23. of Henry the eight gives the Writ of attaint in the course there mentioned against the party that had judgement it lieth against his Executors if hee be dead but

nothing it was resolved that A. should not have i● 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 fe● 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

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

shall be assetts to charge the Executor So also of Actions of Detinue and of covenant for any thing personall or any Chattell Reall Lease Wardship or the like But perhaps some will doubt of Covenant touching Inheritance viz. the assurance of Lands or enjoying thereof free from this or that incumbrance or the like Yet even in those cases if the Covenant were broken in the Testators life time I thinke clearely the Action is accrued to the Executor for that his Testator was to recover dammages in the Action of Covenant for that breach and he being intituled to these dammages as principall and not any accessary thing in that action the Law hath cast that action upon the Executor And that is the cause why if waste be committed in the life of the Lessor by his Lessee and then the Lessor dyeth his Heire can have no Action for this waste viz. because he cannot recover the treble dammage as neither can the Executor have it for that he cannot recover locum vastatum the place wasted the Inheritance whereof is in the Heire That an Executor at the Common Law could not maintaine an Action of trespasse for goods of his Testator taken away in his life time seemes to be implyed by the Statutē in the time of King Edward the third Which gives such action Yet it seemes that a Replevin was mainetaineable by the Executor at lest in some cases for goods taken or distrayned in the Testators life time But in case the distresse were for Rent Service it is said a little after the making of that Statute that the Lord may not now avow for his Rent or Service because his Tenant is dead but must set forth the matter and thereupon justifie to excuse himselfe from answering dammages and the Executor shall by this Action recover the Cattell or Goods and that by the Common Law saith the Booke though the Statute of Marlebridge had never beene made for that the property remained in the Testator Note it speakes not at all of the said Statute of 4. Edward the 3. But Newton in the time of King Henry the 6. would have it that the Executor in that case should not have a Replevin but an Action of Trespasse grounded upon the said Statute viz. 4. Ed. 3. Which me thinkes cannot be by any meanes by reason of the Statute of Marlebridge cap. 3. Non ideo puniatur dominus c. for the Executor as well as his Testator is thereby restrayned as I thinke from the Action of Trespasse against the Lord. As for that no Avowry can be made upon the Tenant that is now remedyed by a late Statute The other Statute hath beene taken to extend to other things then Goods moveable for where a Church becomming voyd a stranger presented thereunto wrongfully and the Patron dyed it was resolved in the late Queenes time that the Executor might by the equity of the said Statute mainetaine a Quare impedit But whether an Action of Trespasse lyeth for an Executor against him who spoyled the Testators Corne Grasse or Wood growing hath beene questioned but no where resolved to my knowledge I thinke it may lye with some difference First for that the Statute of 4. Edward the 3. doth not onely speake of Goods carryed away as limiting the Law to that trespasse soly and particularly but speakes generally of Trespasse done to Testators and then brings in that particular of goods as one Instance Now there be many cases of instances or ensamples given in acts of Parliament which yet doe not restraine the remedy or purven to that particular or from extending to other cases of like nature Thirdly the Statute speakes of Trespasses remaining unpunished which it meant to redresse But it should still leave many unpunished if it should have no larger extent than to that one singular trespasse of Goods taken away viz. moveables Againe the Testator was clearely intituled to a recovery of dammages for this other trespasse which if he had recovered should have come to his Executor Yea the things themselves all if felled in the Testators life and part though not felled should have come to the Executor therefore also the dammages recoverable in liew thereof out of which recovered the debts and Legacies of the Testator are to be satisfied Besides this Action of Trespasse is a thing severed from the state of the Land so as if the owner thereof had after this trespasse done aliened the Land yet had this Action remained to him as I take it clearely And why not as well as where a Trespasse is done upon the Land of the Lessee and then the terme expires this doubtlesse doth not take away his Action nor his Executors But me thinkes here may be some differences probably taken as first betweene a Trespasse in destroying or taking away Come growing and a trespasse in Grasse or Wood growing for the first being of that nature as that though the Owner had a state of Inheritance in the Land wheron it groweth should have dyed before severance and felling Yet it should have gone to the Executor and not with the Land to the Heire therefore doubtlesse doth the Action for destroying or taking away thereof accrue by the operation of Law to the Executor in liew of the thing taken or destroyed Otherwise perhaps of Wood or Grasse Which by the Owners death should have gone to the Heire and not to the Executor And yet here againe another difference me thinkes may be betwixt Grasse and Grasse viz. betwixt that in Pasture and that in Meddow yearely mowed and turned into Hay not lest to be consumed by the mouthes of beasts as that growing in Pasture For as the Law distinguisheth betweene these Soyles gives precedency to Meddow and makes it waste for a Lessee to Plough it up not so for Pasture Yea Tithe is payed of Hay but not of Grasse growing in Pastures so the Meddow Grasse being in the Owners purpose and intention as a thing severed from the soyle should mee thinkes so be also in the eye and estimation of the Law and therefore stand in a different state and account from Pasture Grasse A third difference may be in the manner of the Trespasse viz. Where the Meddow Grasse is eaten up with Cattell by a Trespasser and where by him mowed and carryed away as Hay for in this latter case an Action of Trover and Conversion for so many loades of Hay is doubtlesse maintainable by the Executor though it should be admitted that in the other case of consumption by the mouthes of beasts without severance no action should be maintainable by the Executor which yet I admit not but thinke the contrary probable For when Meddow ground which yearely conceiveth Sol sine homine generat herbam shall be ready to be delivered of her burthen if a stranger putting in an head of Cattell which swallow up and tread downe this fruit of her wombe before the Mower

with his sithe come as a Midwife to helpe her delivery if then by the hasty death of the Owner before Action brought this great Trespasse should be dispunishable it were contrary as me thinkes to the purpose of the said Statute and a great defect in the Law Yet here perhaps touching this a fourth difference may be or arise out of the time of the death of the Owner viz. where he dyeth before time of Mowing and where not for Dato that in the former case because if such destruction or consumption had not beene yet the Owner dying before severance this should not have come to the Executor but have gone with the soyle to the Heire that therefore the Executor who is not damnified should recover no dammages Yet in the other case the Owner living till after Hay time clearely passed viz. till the end of August me thinkes now since this fruite of the Meddowes wombe should have beene a Chattell severed had not this Trespasser made unlawfull prevention Therefore the Executor to whom the same should have come towards the performance of the Will should have out of the said Statute an Action and remedy reached unto him to recover recompence in dammages for this wrong done in retardationem Executionis Testamenti A fifth and last difference may perhaps be in the state of the Owner for Posito that where the Land is his Freehold or Copyhold Inheritance no Action should be given to his Executor for Wood or Grasse taken or destroyed in his life time yet where he is but Tenant for yeares Guardian or Tenant by extent so as the very state in the Land was to come and is come to the Executor together with Quicquid plantatur solo me thinkes the Executor should have together with the state in the soyle the Action to punish the Robber of or Trespasser upon the soyle Thus having scanned and sifted to the best of my ability all differences and circumstances of this point how farre I am wide and wherein right Aliorum sit judicium or rather Altioris esto judicii But this is cleare that wheresoever Executors doe recover any dammages for trespasse or other wrong done to their Testator the money recovered at least if Execution be had or money received will be Assets in their hands as well as debts recovered upon Bonds or Bills or Lands by them taken in Extent upon Statutes Recognizances or Judgements Yea without ever having these moneyes Executors may make them assets in their hands viz. by making Releases or Acquittances or acknowledgement of Satisfaction for this amounteth to a Receipt and chargeth the Executors towards the Creditors with the whole penall summe though happly they receive but part as the principall or some like proportion Therefore there is great caution to be used by Executors in this kinde that unlesse they be sure they have Goods sufficient to pay all Debts and Legacyes they make no Release Acquittance or Acknowledgement of Satisfaction for more then they doe receive be it debt or dammages And the like caution to be used by them touching submission of debts or dammages to arbitrement whereby discharges of the same may grow for the submission to the Arbitrement being their voluntary act although the Arbitrators by their judgement doe discharge the debt or dammage in part or in whole yet shall the Creditors have like remedy thereupon against the Executors as if they had released or which is more received the same Other Actions there be of discharge which as the Testator himselfe in his life time might have had so may his Executor after his death viz. Writs of Error Attaint Disceyt Avdita Querela Identitate nominis But this last is given by Statute Whatsoever is regained by any of these wayes as unduely lost by the Testator shall also be Assets Speciall cases pertinent to the Premisses 1. Chattells come to Executors from the Testators yet not Assets 2. Assets which be no Chattells 3. Things in Action and in the personal●y turned into Chattells Reall e contra AS to the first I exemplifie thus A. makes B his Executor and dyes B. makes C. his Executor and dyes The Goods left by A. to B. as Executor farre exceedes his Debts and Legacyes or let us suppose no debts nor Legacyes of A. and that B. dyeth much in debt above the Goods hee leaveth and did make no alteration of the property of the goods of A. but meerely left them to C. his Executor Now shall not the Goods which came to B. as Executor of A. and so from B. to C. be lyable in Law to pay the debts of B yet in Conscience me thinkes they should and that C. should not receive them to his owne use as in Law he may where A. left no debts But if A. making B. Executor did also by his Will give him all his Goods and he in his life time made election to have them as Legatee or by his Will did so dispose of them or appoint them to goe as the goods hee had as Executor could not be given or disposed Now by this election they were altered in property from being his as Executor and so as his owne goods should be liable to his debts But things in action could not be so given or disposed viz. Debts c. yet if D. were indebted to A. one hundred pound and B. his Executor tooke new bond of him or another for it giving up the old Bond now was it become his owne duty and so shall stand in his Executor Another instance of this thus If A. patron of the Church of D. grant to B. the next avoydance the Church becommes voyde B. dies before he presents his Executor presents and hath the benefit of preferring his sonne or friend yet shall this make no Assets in his hands for payment of debts for that hee could not lawfully take money to present But if B. had dyed before the Church had become voyd Then because the Executor might lawfully have sold it the value should be Assets in his hands as I conceive except perhaps the incumbent had died so hastily after B. that the Executor had not time convenient to finde out a chapman and to sell it If in the other Case a stranger had presented and got his Clarke admitted and the Executors of B. had in a Qua. Imp. recovered dammages the money so recovered should have beene Assets Thus much of the first viz. that some things of the nature of Chattells may come to Executors and yet not be Assets Touching the second viz. that some things may be Assets in the hands of Executors which yet are no chattells I shall give but two Instances First where a man leaveth a Villen for yeares to his Executors and the Villen purchaseth Land in Fee-simple and the Executor entreth into the Land now hath hee Fee simple therein and this Land is Assets for payment of the Testators debts

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 defenda●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