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
Things accrued by Covenant or Assumption IF A. Covenant with B. to make him a Lease of such or such Land by such a day and B. dieth before the day and before any Lease made now must A. make the Lease to the Executor of B. and the Lease so made to him shall be in him as Executor and consequently as Assets This is proved by the Judgement in the Case betweene Chapman and Dalton in the late Queenes time Yet I confesse that it is not expressed in the resolution of this Case that this Lease should be Assets but that the Executors should have the Terme as Executors which implyeth as much in my understanding and the declaration whereupon the Defendant demurreth sets forth the breach of that Covenant to be in retardatione executioâ—is testament so as the dammages thereupon recovered viz. 300 and 30. pound were Assets and consequentâ—y also should the terme have beene in â—ew and recompence whereof these dammages were given The like Law if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Mault or so many loades of Coales or Wood or any other Wares or Marchandise and this is not performed in the life of B. but after to his Executor it shall be to him as Executor and shall be Assets in his hands as well as the money recovered in dammages for not performing should have bene Of things accrued by remainder or increase IF a Lease be made to one for life the remainder to his Executors for yeares and he dieth this will be Assets in the hands of his Executors though it were never in the Testator as was in the later end of the late Queenes time resolved by three Justices the Lord Anderson onely being of a contrary opinion and there it was said that Cranmers Case wherein the contrary in effect was resolved was of little authority for that there were first two Judges against two till after Mounson changed his opinion upon a conceit that there the estate was by way of use which could make no difference like law where a Lease for yeares is by Will bequeathed to A. for life and after to B. who dieth before A. Although B. never had this terme in him so as that he could grant or dispose it yet shall it rest in his Executor as his goods and be Assets As for a remainder for yeares so in the Testator that hee might grant or dispose it at his pleasure no doubt can be thereof though the same fell not in possession to the Testator in his life time yet no scruple nor doubt can be but that this is Assets to the Executor even whilst it continues a remainder and before it falleth into possession because it is presently valuable and vendible Nor much of other nature to these are the Cases where the Executor Marchandizing with the goods of his Testator maketh gaine thereof So if the Sheepe or other Cattell of the Testator doe breed viz. beare Lambs Calves Colts c. after the Testators death even these which were never in the Testator shall yet be Assets and so the Wooll growing upon the Sheepe after the Testators death But there is one Case worth the consideration and worthy of some doubt as I thinke and that is this One leaveth to his Executor a Lease for yeares of Land worth twenty pound by yeare and the Executor keeping this in his owne hands one yeare after the Testators death doth make thereof thirty pound in cleare gaine above all charges now whether as to a Creditor this whole thirty pound shall be Assets or onely twenty pound and the Case simply thus put shall be understood of an occupying and manuring without any stocke of the Testators and then if the Executor did stocke it with his owne Sheepe or other Cattell as he must have borne the losse by rot or death so is it reason that if the manurants prove gainefull he reape the fruits thereof in recompence of his adventure and of his industry skill and good husbandry But if the Testators stocke of Sheepe and Cattell were as of necessitie or for the better advantage of the Testators estate continued upon the Lease Land then is it reason that the gaine or losse whethersoever of them God sendeth doe redound to the Testators estate Like Law as I thinke if an Executor finding that he cannot instantly after the Testators death let the Lease Land neare the value shall therefore buy seede-Corne and hire the plowing c. But it may be said that the Lease hath one entire valuation at the first upon the appraisement To this I answer first that the value upon the appraisement is not binding nor much respected at the Common Law if it be too high it shall not prejudice the Executor if too low shall not advantage him but the very value found by Jury when it comes in question whether the Executor have fully administred or have Assets or not is that which is binding Next I say that if a long Lease come to Executors of Land worth an hundred pound by yeare and no sale is made thereof by the space of a yeare or more now the terme continuing of the like value as at first it is no reason but this hundred pound raised the first yeare should goe towards the payment of debts and Legacies rather then any of them should be unpaid This thing I meane the knowledge of them are usefull two wayes viz. First to give light to Executors to discerne what unto them of right pertaines Next to shew unto Creditors and Legatees what and how farre things shall be Assets that is to say goods to enable charge and binde Executors to pay debts and Legacies For whatsoever any of these wayes commeth to the Executors from their Testator or is recovered by any of these Actions shall be in their hands Assetts the Cost and charges of recovering deducted CHAP. VII What manner of Interest an Executor hath in his Testators Goods and Chattels and how different from the common Interest they or others have in their owne proper goods THe Interest which an Executor hath as Executor in the Goods of his Testator is much different from the absolute proper and ordinary Interest which every one hath in his owne prope Goods as may well appeare in and by these points 1. Although if a stranger take away these Goods the Action of Trespasse for the Executor is of generall forme Quare bona sua cepit calling them his Goods whereas a man Outlawed in Debt c. or convict or attainted of felony or treason forfeiteth all his owne Goods yet these which he hath as Executor shall not be forfeited If a Villen be made Executor his Lord cannot take these goods though he may take all the Villens owne Goods and for taking such Goods or for a debt due to the Testator a Villen may sue his Lord. Nay if the Executor grant all his Goods some good
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
and must have a Will proved and incase he doe make another Will for his state residue there must be two Wills proved But in th' other case where by one onely Will one is Executor for one part of the estate and another for another there being but one Will to be proved one proving of it sufficeth And though in the premises of a Will two be made Executors joyntly and equally yet there may be a Proviso that one shall not meddle during th' others life so as they shall be Executors successively and not joyntly and thus also to other purposes aforesaid a subsequent cause or Proviso may make the partition and division of authority But if the Proviso or clause subsequent be meerely contrary to the Premisses it wil be void as where two were made Executors with a Proviso or cause that one of them should not Administer his goods This was held voyde for repugnancy by Brudnell and Englefield Justices But Fitzherbert Justice was of minde that it was not voyd nor utterly repugnant For the other might joyne in sutes though not Administer and Justice Shelley was of a third opinion different frō all the rest viz. that here was a repugnancy but the last clause should controll the Premisses and so this one onely should be Executor Who may make an Executor SOme persons may be unable to make Wills and consequently Executors for that is all one whosoever may make a Will may make an Executor and he that may make an Executor may make a Will There be nineteene severall kinds of persons unable as the Canonests say to make Wills but with many of them we will not intermeddle because wee finde no mention of them in our Law The persons principally and most usefully to be considered of by us are either the defective in understanding as Infants Idiots Lunatickes and the like or defective in power or interest as women covert or married persons out-lawed attainted convict or excommunicate Some touch we will give of others as Aliens Corporations Villens Monkes and Fryers As for Infants and women covert because much is to be said of each of them and their Administrations wee will forbeare to treate of them in this place but after will doe it of each severally To begin with an Idiot naturally he is not able to make a Will as was resolved in the Spirituall Court because he wants the use of Reason to conceive what it is fit for him to Will nor doth the Common Law oppose this as I thinke A Lunaticke having Lucida intervalla that is some seasons of enjoying his right minde and freedome from his Lunacy may in those times of his right minde make a Will and Executors else not for even one by age or sicknesse become of non sanae memoria is unable to dispose of Lands or goods One deafe and dumbe borne may make a Grant saith Master Perk. if he have understanding which is hard as hee confesseth consequently much more a Will but in the time of K. Hen. 8. it is left a demurrer whether a Deede by such be good or not If but mute he may wage his Law and atturne by signes and so perhaps by signes declare his Will 44. Ass p. 36. An Alien may make or be an Executor so as he be not an Alien enemy for such cannot sue as in the late Queenes time was held but there the doubt was whether a subject of Spaine were at that time to be held an enemy no warre being proclaimed betweene the Kindomes though hostility exercised As for persons Attainted Convicted or Out-lawed it will be said that these can have no goods of their owne and consequently they can make no Wills nor Executors and it is not to be denied that we finde it pleaded sometimes by Executors that their Testators stood out-lawed But first it is cleare that all and every of these may have goods as Executors to others which neither are forfeited by Attainder or outlawry nor devested by marriage or Villenage Therefore as touching them they may make Testaments And that all these sorts of persons may be Executors is also evident So also touching Villens Monkes and Fryers who can have no goods to their owne uses And that one attainted of felony may have an Executor appeares by the Case in the late Queenes time wherein it was long debated whether such an Executor might maintaine a writ of Error or not to reverse the attainder of the Testator And as for other Out-lawries the Plea thereof by the Executors that their Testator was and died out-lawed proves not a nullity of the Will or Executorship for then they might have pleaded that they were never Executors But it tends to this that no goods did or could come to them for satisfaction of the debts by reason of out-lawry yet it hath beene delivered not of old onely in many Bookes but by some of late that debts upon contract where the defendant may wage his Law are not forfeit by out-lawry nor uncertaine damages for trespasse in battery or false imprisonment c. Quaer Of breach of Covenant But goods taken away by a trespasser may yet be forfeited by the Attainder or out-lawrie of him from whom they were taken for that the property in right still appertained to him and he might have taken them againe wheresoever he found them therefore the action for this shall not come to his Executor but for th' other not forfeited it may Whether an Excommunicated person be able to make a Will or not may be some doubt since Keble denieth him abilitie to present to a Church and in the very Point antiently the opinion of Canonists hath beene Negative but more lately grew Affirmative Who may be Executors more AN Excommunicate person cannot Sue that is proceede in Sute as Executor till he be absolved there being danger of Excommunication to all that converse with him but this makes not a nullity of his Executorship nor over throwes the Sute but stayes it onely from proceeding untill absolution As for persons attainted or outlawed wee have before spoken Affirmatively in way of proofe that they may make Executors for continuation of the Executorship So of Aliens and others before Recusants convicted at the time of the death of any Testator are disabled to be his Executors Whether Corporations Compound or consisting of divers persons may be made Executors or not I doubt First because they cannot be Feoffees in trust to others use secondly they are a body framed for a speciall purpose thirdly they cannot come to prove a Will or at least to take an oath as others doe What a man may give or dispose by his Will HAving cōsidered of the makers of executors by Will and of them so made Let us now consider what by this Will may be disposed given or bequeathed And first hee who himselfe is an Executor cannot by his Will give or bequeath to any
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
Legacie in certaine and lying in Prender may be taken or had without the executors assent by the Legatee or him to whom it is bequeathed 106 2 When an executor can or safely may pay deliver or assent to a legacie 108 3 Whether one executor alone may doe it where there be many or what if the executor be an infant or a married woman ibid. 4 What shall amount to an assent of the executor and what to a disassent or a disability of assent 109 How a lease or chattell reall may be given to one for a time with remainder to another how not 113 6 Where an assent to the first or one part of the bequest shall amount to an assent for the residue 121 7 Of the manner of Assents and therein of Assents conditionall 123 8 What manner of interest the Legatee in the remainder of a Lease after the death of another hath during the life of that other and whether he may dispose of it during that time and how 125 9 Whether this remainder can be defeated by any act of the Devisâ—â— for life or by the death of him in Remainder first 126 10 By what acts or accidents a legacie may be forfeited lost or revoked as by revocation death of the Legatee before c. 127 11 Whether the executors assent shall have relation to the testators death and shall make good a grant before made by the Legatee 135 Chap. XIX DIvers cases of bequests considered and expounded 139 Chap. XX. OF the executor of an executor 146 Chap. XXI TOuching Administrators 148 Chap. XXII COnsiderations in conscience touching payments of debts Legacies and the preferring or respect of persons 149 Chap. XII Of the Order and method to be used by Executors in paiment of Debts and Legacies so as to escape a devastation or charging of their owne goods WE have gone through and dispatched the two first proposed parts viz. 1. Touching the being of Executors and the manner of their being 2. Their having and the manner of their having We come now to the third part viz. their doing or disposing of the testators estate Now this consists principally in the issuing of money though partly also in delivering or assenting to the execution of Legacies not being mony but other goods or chattels bequeathed Money is to be issued by executors foure wayes ordinarily About the funerall of the testator About proving his Will In paying of debts In paying and satisfying of legacies pecuniary As for the first burials be as of necessity for two respects viz. 1. Of charity to the dead that hee may be Christianly and seemely interred 2. To prevent and avoide annoyance to the living who by the very view of dead carkases would both be affrighted and within a few dayes distasted at the nose We know that under the Law the touching of a dead carkase made a man uncleane and to need purifying nor can we easily forget what the sisters of Lazarus said to our Saviour touching their brother when hee had beene dead two or three dayes viz. that the taking of him then out of his grave must needs bring a noysome savour Hereabout therefore some expence is necessary and that not only for fees to be paid which in London amounts to a considerable summe specially for such as are to be buried within the Church but also otherwise viz. for the Pall or Hearse-cloath the ringing c. As for feasting and banqueting it seemes not to me congruent to the sadnesse and dolefulnesse of the action in hand But howsoever that be yet where the testator leaves not sufficient goods to pay his debts festivall expence is to bee forborn except the Executor will out of kindnesse beare it with his own purse for dead debtors must not feast to make their living creditors fast I meÌ„tioned a coÌ„siderable amount of funeral fees payable in London and surely to let my thoughts fall back upon it a little it is worth consideration whether in that kinde and especially for those who dying there are yet carried into their countries to be buried the exaction be not either unjust altogether or too onerously excessive so also for much ringing contrary to the Canon made at the Convocation in the first yeare of King Iames. The next thing mentioned to justifie and occasion expence is the proving of the Will But this way a greater disbursement except for riding charges or by reason of opposition by a caveat put in or the like will not stand allowable then is prescribed by the Statute made in the time of Hen. 8. whereby the fees of Ordinaries and their Scribes Registers and Officers be limited And it is strange that these bounds have beene so much and so frequently broken and transgressed the rather for that long before in the time of King Edward the third by an Act of Parliament it is provided that the Kings Justices should as well at the Kings suit as at the parties grieved enquire after such oppressions or extortions for so they be called yea S. Germ. who was no stranger to the civill and canon law as appeares by his book saith that the Ordinary ought to take nothing for the probate if the goods suffice not for funerall and debts but hee meanes only that conscience is against it Now we come to the third occasion of disbursment viz. paiment of debts which is the maine part of our businesse We have before seene what debts lye upon executors having assets to pay them we are now to see in what order they must pay them as well Vt sint fidi dispensatores as for their owne indempnity ne quid res sua capiat detrimenti To put our selves into the better order or method of handling these things we will sort out debts into their severall kinds thus They are of these three sorts viz. either Debts of or upon record Or debts by specialty Or debts without specialty The debts upon record may be againe divided into foure sorts or kindes viz. Debts to the King or the Crowne Debts by judgement or recovery in some court of record Debts by recognizance Debts by statute staple or statute merchant Amidst these the debts to the Crowne are to have the first place or precedence so as if there be not come to the executor goods of greater valew then will suffice for the satisfaction of these he is not to pay any debt to a subject and if he be sued for any such he may pleade in Barre of this suit that his testator died thus much indebted to the King shewing how c. and that he hath not goods surmounting the value of that debt Or if the subjects pursuit be not so by way of action as that the executor hath day in Court to pleade but be by way of suing execution as upon statute marchant or staple then is the executor put to his audita querela wherein he must set forth this matter And there is great reason why the Kings
keepe it in any respects to pay it into the Court where it is recoverable viz. where the will was proved yet the case so may be as that this payment may not bee at all safe for the Executor As put the case that hee entred into bond or statute to pay all Legacies by such a day to the severall Legatees heere I thinke the payment into the Court spirituall sufficeth not for that must make the receit to be with some charge which is in some kinde an abatement there I thinke therefore legally to secure the Executor the payment must bee to or in the presence of the gardian because of noriture viz. him or her who hath though not as gardian in respect of lands the custody or education of the infant for otherwise to pay it into the hands of such a tender infant separate from any governor or gardian were to expose it to losse both for that hee is not able to count the summe and for that hee yet not being come to discerning yeeres were like with Esops Cocke to part with pearles or coyne for plumes and trifles of no valew But in case no bond nor other collaterall penalty lie upon the Executor or in Case the Bond or Statute bee onely to performe the will generally which nothing alters the course of payment which by the will the Law laies upon Executors then is not the Executor put to any such payment nor need pay without demand and acquittance as in case of payment upon a single Bill or of a rente secke where no distresse can bee taken nor other penalty incurred yet in that Case if demand bee and acquittance ready to bee given let the Executor take heede in Case hee bee bound to performance that hee stand not upon the invalidity of the acquittance in respect of nonage for as I have said proof by witnesses may supply a nullity of acquittance and much more the weaknes or imbecillity payment according to the testators appointment being the matter w ch acquitteth the payer and this the Executor may have testified under the hands of divers witnesses expressing circumstances so as all dying may continue safely from second payment as well as an acquittance the witnesses whereunto are subject to mortality as well as the other But herein Courts of equity doe often interpose helpfully for them who seeke not evasion from payment but only security in paying And of infant executors and by occasion thereof of infancy in Legatorees or Legatees thus much Of Legacies ALthough these be not recoverable at and by the Common Law but most naturally at and by the Law Ecclesiasticall yet by suits in Courts of Equity as the Chancery and Court of Requests they are often obtained and of many things touching them the Common Law taketh notice and hath manifold occasions so to do we will therefore consider thereabout these parts or points some whereof have beene in part before touched upon other occasions Whether any legacy in certaine lying in prender may be taken or had without the executors assent by the legatee or him to whom it is be queathed When an executor can or safely may pay deliver or assent to a legacy Whether one executor alone may do it and what if the executor be an infant or woman covert What shall amount to an assent of the executor and What to a disassent or disablement of assent How a lease or chattell reall may be given to one for a time with remainder to another how not Where an assent to the first or one part of the bequest shall imply or amount to an assent for the residue Of the manner of assents and therein of assents conditionall What manner of interest he in the remainder of a lease after the death of another hath during the life of that other and whether he may dispose of it during that time and how Whether this remainder can be defeated by any act of the devisee for life or by the death of him in remainder first By what acts or accidents a legacy may bee forfeited or lost and therein of revocation death before c. Whether the executors assent shall have relation to the testators death and shall make good a graunt before made by the legatee As for the first we have before shewed the assent of the executor to be necessary before any legacy can be had for that debts are first to be paid and that the executor is to look to at his perill But hereto adde a little out of M. Swinborne a learned Civilian who saith that in case any goods be in the hands or custody of J. S. and the owner doth bequeath them to him then may he keepe or retaine them against the will of the executor so as there be other sufficient goods in the hands of the executor for payment of all debts but though thus as it seemes would it stand in the Ecclesiasticall Law yet for that no property is transferred to the legatee without the executors assent therefore doubtlesse the executor may at the Common law recover the thing with-held or damages to the value against the legatee detaining it Another case there is wherein as the learned Civilian saith the legatee may take the thing to him bequeathed lying in prender viz. Horse other beast or peece of Plate or other like thing knowne and in being and that is where the testator doth expresly so appoint by his will But herein doubtlesse the Common law at and by the which debts are recoverable against executors will oppose the law Spirituall for else by such appointment the testator might cause that all his goods should be taken by legatees and that none should remaine to pay debts Yet if there be other goods besides sufficient for payment of debts then indeed I see not how the executor can hinder such taking without violating his oath taken for performance of the will If any say that it is also a breach of oath in the other case I say he observeth not that there that clause in the will being against the law is void and consequently there is a nullity upon it and it is as if no such thing were in the will and so the oath extends not to it And as a chattell shall not be transferred to a stranger without the executors assent so if the devisee be to the executor himselfe till he elect to take as legatee it shall be in him as executor as appeares by the straine and argument of two cases in Plowd Comment and more lately in the Kings Bench the point being divers dayes argued was at last so resolved by three Judges against one and the reason of Coke at the Barre was very good for here the executor sustaines two persons viz. an executor and legatee and so all one as where the bequest is to another for Quando duo jura concurrunt inuna persona aequunt est ac si essent in diversis As for