land after the death of his Wife in this case the Wife by the favourable interpretation of such Will shall have the land for term of her life Finches Law pag. 172. 13 H. 7. 13. Terms of the Law verb. Devise Cowels Inst pag. 144. Swin part 4. sect 4. Noyes Maxims pag. 100. 230. If a man devise all his lands in A. to his two Daughters and makes them Executrixes and afterwards purchaseth more lands in A. and then dies without a new publication of his Will and expressing of this land newly bought therein in this case this land newly bought doth not pass by the same Will H. 43 El. C. B. Beckford and Parncotes Ca. Goldsboroughs Rep. pag. 150. pl. 77. 231. A man having four Daughters A B C and D devises his lands to his Wife for her life and after her decease the same to be equally divided amongst his Daughters or their Heirs A one of the Daughters died before the Mother and after the Mothers death the heir of A sued for a fourth part and adjudged for the Heir by vertue of the disjunctive or but if it had been to have been divided amongst his Daughters and their Heirs this word had altered the case and would have given the Fee to the three surviving Sisters Mich. 1 Car. 1. B. R. Rot. 189. Taylor and Hodgskies Case Godbolts Rep. fol. 363. 232. If one devise his lands to another Man and his Heirs and the Devisee dieth in the life-time of the Devisor and afterwards the Devisor dieth in this case the Heirs of the Devisee shall not have the land Plo. Com. fol. 342. in Brett and Rigdens Case 233. If a man seized of lands in Fee sowe the same with Corn and afterwards deviseth the land to A B and dieth before the Corn be severed in this case the Devisee shall have the Corn a swell as the land but it is otherwise where the lands descend to the Heir for the Executors or Administrators shall have the Corn sown at the Testators death Mich. 20 Jac. C. B. Spencers Case Winches Rep. fol. 51. 234. A man devised his Messuage whereof he was seized in Soccage in Fee by these words I devise my Messuage where I dwelt to my Cozen H and her Assigns for eight years and my Cozen H shall have all my Inheritances if the Law will and this was adjudged a good devise in Fee of the Messuage and by the general words of the Will all the Inheritances pass also Mich. 11 Jac. C. B. Wedlock and Hardings Case Godbolts Rep. fol. 208. 235. If a man devise his Lands to the Heirs-Males of any of his Sons or next of Kin such a devise is void for the uncertainty thereof Hil. 2 Car. 1. C. B. Rott 1288. in Hunt and Fishers Case and Trin. 1649. B. R. Rott 849. Beal and Wymans Case Styles Rep. fol. 240. 236. A man having Lands in Fee-simple and Goods to the value of five pounds onely deviseth to his Wife all his whole Estate paying his Debts and Legacies which amounted to forty pounds in this case it was adjudged that all the lands did pass by the devise and that the Wife had a Fee-simple in the lands the word paying enforcing it for they are to be paid presently which cannot be if the land pass not in Fee Tr. 1651. B. R. Kirman and Johnsons Case Styles Rep. fol. 293. and see 29 H. 8. Bro. Testament 18. 237. A seized of three Houses and other Lands Pastures and Meadows in W in the County of H and of Land in the County of O devised in this manner viz. I give my Capital Messuage in the Counâ—y of O and all other my Lands and Meadows and Pastures in the Parish of W to such an one and adjudged here that all the houses passed by the devise for that lands comprehends houses also Ewer and Heydons Case Abr. Mores Rep. pag. 103. pl. 468. 238. If a man devise the profits of his lands it is a devise of the lands themselves Tr. 16 Jac. C. B. Rott 465. Balder and Blackbornes Case Brownlo 1 part 79. Owens Rep. 66 Tr. 23 Car. Styles 81. 239. A man by his Will deviseth his lands to his Wife and if she have Issue by the Devisor that his Issue shall have it at his age of twenty one years and if the Issue die before that age or before his wife or if she hath no Issue that then she shall chuse two Attorneys and sheto make a Bill of sale of any lands to her best advantage In this case it was resolved that the wife hath those lands for life and she having no Issue hath not any interest to dispose but hath an authority to nominate two who shall dispose of the lands and they shall make sale of them Mich. 5 Jac. B. R. Beal and Shepherds case Bro. 2 part Rep. fol. 199. 240. I might go on to shew what words in a Devise make a Condition and what a Limitation and where an estate shall pass by Implication and what words make an estate Tayl Fee-simple or for Life and where the Devisees shall be Joyntenants and were Tenants in Common with several other things but it not being the intent of this Treatise I refer the Reader to the learned Reports now extant where he may be satisfied and so I return again to my purpose 141. Devises and Legacies are to be sued for in the Ecclesiastical Court but the Ordinary cannot take Cognizance of Fees or Free-hold devised but a Prohibition will lye if any Judge of any Spiritual Court shall cite one before him in case of such a devise as intrencheth upon the Common Law Perkins sect 576 579. and Dr. and Stud. li. 2. cap. 55 Cowels Inst pag. 146. 242. Note there may be much deceit used by a knavish Executor and though the Goods be of a great value after the Debts are paid which were truely owing and due by the Testator yet he may keep the Legacies and never pay them perhaps but pretend that all the Debts are not paid and thereupon may cause Strangers to sue and then alledge that there are more Suits against them then the Goods of the Testator are sufficient to satisfie or they may confess the Actions brought against them and several other ways there are whereby they may defraud the Legatees of their Legacies Therefore it were good for Testators in their life-times either to secure the Legacies to the Legatees by some sure means or otherwise in their life-time to deliver the same that they see them possessed thereof and not leave it to the Will of the Executor Perkins sect 571. CHAP. IX Several Cases concerning the Duty of an Executor 243. THere are three kinds of Executors or persons which have to deal with the Execution of dead mens Wills and disposition of their Goods The first hath his Authority from the Law and that is the Bishop or Ordinary of every Diocess who hath the execution thereof when no Executor is appointed by the Testator
to give an hundred pounds doth give but fifty pound in these cases the Legatary may recover as much as the Testator did mean and intend to give be it more or less then the sum mentioned Swin part 7. sect 5. num 13. 217. If the Testator bequeath an hundred pounds to the Church not mentioning what Church it shall then be understood of his Parish-Church or if he name a Church and there be divers there of the same name and none of them his Parish-Church then the Executor if he prove the Will or the Ordinary if he refuseth may bestow the same on which Church he will but if the Testators Parish-Church be of the same name it ought then to be bestowed there Mich. Grass thesaur com opin sect Legat. q. 64. Swin part 7. sect 8. Franc. Mantiâ— de conject ult vol. li. 8. tit 6. 218. Where the Testator doth bequeath one half of his Goods to one person and makes another his Executor willing and appointing that all his Goods shall be divided betwixt them in this case the Legatary shall have half before debts paid and the Executor the remainder after debts paid as where the Testator hath Goods to the value of an hundred pounds and oweth twenty pounds out of the same here the Legatary shall have fifty pounds and the Executor shall pay the twenty pounds debt out of his half 5 Mariae Dyer fol. 164. Goldesborough Rep. pag. 149. Pl. 74. Hil. 43 El. C. B. Swin part 7. sect 10. Cowels Inst. pag. 146. 219. If a man bequeath twenty pounds to A and twenty pounds to B and twenty pounds to C and makes his Executor and dyes having Goods in all but to the value of twenty pounds of which Goods the Executor makes an Inventary in this case he may pay which of the three he pleases his whole Legacie and the other two are without remedy or he may if he please pay every one of them a rateable part and if in case the Executor make no Inventaâ—â— yet he is chargeable no further â—â—en the value of the Goods and so 〈◊〉 every Legatary in such case should 〈◊〉 him they must prove sufficiency of goods or otherwise they should â—et nothing Plo. com fol. 545. in Case â—ter Parham and Yardly Dr. and â—ud li. 2. cap. 10. 220. If the Testator say I will â—at A B shall have an Horse here 〈◊〉 Election belongs to the Legatary but if he had said I will that my â—xecutor give to A B an Horse then the Election belongs to the Executor and if the words of Election be directed to neither of them then the Legatary shall make the Election if there be any such thing extant amongst the Testators good as is bequeathed and if not then the Executor is to make the Election and in case where the Legatary chuseth he must not take the very best unless there be no more but two of the things extant for then he may chuse the best and so he may do when the Testator grants him the Election and as the Legatary may not chuse the best neither may the Executor obtrude the worst of those things extant and where there is no such thing extant then the Executor iâ— to provide a competent thing for thâ— Legatary Mich. Grass thesaur com opin sect Legat. q. 62. num 2 and Mins in D. sect si generaliter num 〈◊〉 Swin part 7. sect 10. Co. on Litt. fo 144. b. 221. If the Testator bequeat two Horses to two Men having 〈◊〉 more and one of them is a greaâ— deal better then the other in this case he that is first named in the Testament shall have the Election Co. on Litt. fol. 144. b. 2 H. 7 23. Swin part 7. sect 10. 222. If the Testator give to A B twenty pounds if he will in such case A B must express his willingness by some means or else the Legacy is not due and if he die before such expression then the Legacy is lost and shall not go to his Executors or Administrators which otherwise it would if no such condition had been expressed Swin part 4. Sect. 6. num 7. 223. If an Executor have a Legacy left him by his Testator and refuseth to stand to the Executorship in such a Case he looseth his Legacy Gribald Thesaur com opin verb. Tutor Swin part 6. sect 2. in sine Refor Leg. Eccles Tit. Testament C. 23 and 24. 224. But if the Executor be not duly admonished to take the Executorship upon him then if he be the Testators Kinsman or such a person to whom the Testator would have given the Legacy though he did not perform the Will and take the Office upon him in such case he shall not loose the Legacy then by his refusal of the Executorship neither shall the Wife loose her thirds nor the Children their filial Portions nor the Creditor his debt if any of them be made Executors and refuse to take the Office upon them Swin part 6. sect 3. num 15. Sichard in lib. Si legatarius cap. de legat 225. If a man by his Will devise all his Lands and Tenements to A B in this case not only all his Land and Tenements which the Testatoâ— hath in possession do pass but also those which he hath in reversion also by vertue of the word Tenements Terms of the Law verb. Devise Cowels Inst pa. 144. Swin part 4. sect 4 num 19. 226. But if the Testator have both Lands in Fee and Lands in Lease for years and deviseth all his Lands and Tenements in such case the Lands in Fee only pass and not the Lands in Lease for years but if he have none but lands for years in Lease only then those lands shall pass by vertue of such devise Tr. 7 Jac. B. R. Rose and Bartlets Case Cro. 1 part Rep. fol. 213. Noys Maxims pag. 99. 227. If lands be devised to a man to have to him for evermore or to have to him and his Assigns in both these cases a Fee-simple doth pass to the Devisee but if such a Gift or Grant were made by Deed it would carry an estate but for life without the word Heirs were in it Perkins sect 557. M. 22 E. 3. Devise 20. Terms of Law verbum Devise Swin part 4. sect 4. num 19. 228. Also if a man devise his lands to another to give or sell or do therewith at his pleasure here he hath a Fee-simple also and if lands be devised to one and his Heirs males this shall amount to an Estate in tayl but if such words be in a Feoffment it shall be taken for a Fee-simple because it doth not appear of what body the heirs Males shall be begotten Terms of the Law verb. Devise Co. on Lit. fol. 9. b. Swin part 4. sect 4. Cowels Inst pag. 144. 229. Also if one devise to an Infant in the Mothers womb it is good but such a Feoffment Gift or Grant is void and if one will that his Soâ— shall have his
goods come to the hands of the Ordinary he is not chargeable by the Law but if any come to his hands and possession and he will neither Administer and pay the Debts and Duties himself nor commit Administration to the Friends and Kin of the Intestate that would then he is chargeable by the Law for so much as comes to his hands and is lyable to the same Actions as other Administrators are But the Ordinary cannot have an Action of Debt Covenant nor any other Action which belonged to the Intestate but he to whom he commits Administration may so that he is subject to the charge and trouble of an Administrator but is excluded from the priviledges belonging to an Administrator 7 H. 4. fol. 18. F. N. B. 92. a. Co. 2 part Inst fol. 398. West 2. C. 19. Fynches Law pag. 174. 388. If an Action of Debt be brought against the Ordinary for a Debt of the Intestates after notice given him of the same he may not Administer to others if he have not sufficient to satisfie that debt M. 7 El. Dyer fol. 233. 389. If the Ordinary take goods of the Intestates into his hands and after commits Administration and notwithstanding still retains the goods in this case he shall be charged still as if he had not at all committed any Administration 11 R. 2. Admin 21. Co. 2 part Inst fol. 398. 390. Where the Ordinary doth take goods of the Intestates being out of his Diocess here he shall not be charged as Ordinary but as Executor in his own wrong 12 R. 2. Admin 21. Co. 2 part Inst fol. 398. 391 If the goods of the Intestates come to the hands of the Ordinary and he dyeth his Executors or Administrators shall be charged in an Action of Debt by the Stat. Westmin 2. C. 19. Westmin 2. c. 19. Co. 2 part Inst fol. 398. Regist fol. 141. 11 E. 3. Exec. 177. 392. Having spoken before concerning a Codicil I thought good here to insert the usual form thereof as followeth viz. 393. Be it known unto all men by these presents That whereas I Henry Walker of R. c. have made and declared my last Will and Testament in writing bearing date c. I the â—aid Henry Walker by this present Codicil do confirm and ratiâ—ie my said last Will and Testament and do give and bequeath unto Roger Myton of Lympton my best Suit of Clothes and my Will and meaning is that this Codicil or Schedule be and be adjudged to be part and parcel of my said last Will and Testament and that all things herein contained and mentioned be faithfully and truly performed and as fully and amply in every respect as if the same were so declared and set down in my said last Will and Testament In Witness whereof I the said Henry Walker have hereunto set my Hand and Seal this 25th day of July in the 19th year of the Reign of our most gracious Soverain Lord King Charles the Second and in the year of our Lord God 1667. FINIS The Table A ADministration how and to whom it must be granted Sect. 354 355 356 357 358 359 360 370 371 382. What Actions â—ye for or against an Administrator Sect. 374 375 376 379. Administration during Minority of an Executor when it shall cease Sect. 274 276 277. The Power and Authority of such an Administrator Sect. 275. What shall be Assets in the hands of an Executor or Administrator and what not Sect. 252 281 282 284 285 296 297 298 299 300 378 380. How and before whom the Executor or Administrator is to pass his Account Sect. 345 346 347 383 384. Appeals when how and before whom to be made Sect. 361 362 363 364 365 366 367 368 369. B. BOna Notabilia what they are and what to be done in such case Sect. 341 342 344. Bona Peraphernalia what is meant thereby Sect. 315 316. C. COdicil what it is Sect. 22 23 24 25 50. The form thereof Sect. 393. Conditions how many sorts thereof Sect. 117. When they must be performed by an Executor or Legatary and when not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. D. WHat things are deviseable by Will and what not Sect. 162 163 164 165 166 167 168 169 170 172 173 174 175 176 177 318. What passes by a Devise of Omnia bona Sect. 191 192. What passes by a Devise of Omnia Cattalla Sect. 193 194 195. What passes by a Devise of moveable Goods Sect. 197. What passes by a Devise of immoveable Goods Sect. 198. What passes by a Devise of all Houshold-stuff Sect 199 200. What passes by a Devise of all Lands and Tenements Sect. 225 226 230. What words in a Devise of Lands make a Fee simple what a Fee-tail what an Estate for life c. Sect. 227 228 229 231 232 233 234 235 236 237 238 239. E HOw many kindes of Executors Sect. 243 244 245. What time the Executor is to have to accept or refuse the Office Sect. 311. In what things the Office of an Executor doth consist Sect. 248 312 321. When an Executor shall be compelled to stand to the Office and when not Sect. 249 250 256 257 305 306. Where divers are Executors when the Action must â—e in all their names and when not Sect. 253 255 260. Who may be an Executor and who not Sect. 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106. The several ways of appointing an Executor Sect. 112 113 114 115 116. An Executor conditionally appointed when he must perform it before he can be admitted to the Office and when not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. What Actions lye for Executors and what against them Sect. 271 272 273 286 293 301. What Acts of an Infant-Executor do binde him and what not Sect. 278. When Executors may refuse the Office and afterwards accept of it and when not Sect. 254 256 257 258 259. VVhat Acts shall make a man Excutor in his own wrong Sect. 308 310. Executor in his own wrong how far he is chargeable Sect. 307. After what order Executors are to pay debts Sect. 292 294 29â— VVhen Execution shall be of the Executors own Goods and when not Sect. 302 303 304. VVhen a Debt shall be extinguished and when not Sect. 286 287 288 377. F. WHat Fees are legally due for Probat of Testaments and granting Administrations Sect. 332 333 334 335 336 337 338. I. WIthin what time the Inventary of the deceaseds goods is to be exhibited Sect. 313. The form and manner of making an Inventary Sect. 314. VVhat goods are put into the Inventary and what not Sect. 315 317. The benefit of an Inventary Sect. 319. L. AFter how many several ways a Legacie may be given Sect. 182 183 184 185. VVhere a Legacie must be sued for Sect. 187 188 189 241. A Legacie conditionally given in what cases the Legatary must perform the Condition before he can obtain the Legacie and in what Cases he need not Sect. 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143. VVhen the Legatary may enter and take his Legacie without leave of the Executor and when not Sect. 186 196. How and after what manner Legacies are to be paid when the Legatary shall recover the whole and when but a part of the Legacie Sect. 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219. VVhen the Legatary shall have the Election or choice of the Legacie and when the Executor shall have it Sect. 220 221 222. In what Cases a Legatary forfeits his Legacie and what not Sect. 223 224. Lands left to be sold by the Executors in what cases they must joyn in the sale and in what cases they need not Sect. 261 262 263 264 265 266 267 268 269 270. M. MOrtuaries where duâ— and what to be paid for the same Sect. 348 349 350 351 352. O. ORdinary who and what he is Sect. 353. VVhat Interest he hath in the Intestates goods that come to his hands Sect. 385 386. What Actions lye for or against the Ordinary Sect. 387 388 389 390. P. THe custom of the Province of York concerning Childrens Portions Sect. 151 152 153 154 155 156 157 158 159 160 178 179 180 181. What is meant by the word Portion Sect. 161. Probat of Testaments before whom they must be Sect. 321 322 323 324 342. How many ways Testaments may be proved Sect. 325 326 327 328 339. T. TEstament the derivation thereof Sect. 1. It s difference from a last Will. Sect. 2 110 111. The several kinds and forms of Testaments Sect. 3 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20. Who may make a Testament or Will and who not Sect. 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85. VVho may be Tutor or Guardian and who not Sect. 144 145. How and by whom a Tutor may be appointed Sect. 146 147 148 150. Their Office Sect. 149. W. WHat shall be a good VVill and what not Sect. 31 32 33 34 35 36 39 40 41 42 43 44 45 46 47 48 49 51 53 54 55 56. VVat shall be a good VVill to pass Lands and Tenements Sect. 6 37 38 52. The difference between a Testament and a VVill. Sect. 2. The definition of a last Will. Sect. 21. VVhat number of VVitnesses required for proof of a last VVill or Testament Sect. 26 29. VVhat VVitnesses may be excepted against in such a case and what not Sect. 27 28 30. FINIS
Quest 86. num 11. 18. The third kind of priviledged Testaments are those which are made to pious uses as when one gives his Goods to be distributed to poor Orphans Widows Strangers Prisoners lame and diseased poor persons or to Hospitals Churches repairing of Bridges or the Walls of a City or Town when the same be decayed and stand in need of repairing and to such Testaments belong many priviledges also As first it may be written with strange and unaccustomed Characters and Notes and yet the same shall nevertheless be as effectual as if the same had been written after the usual and accustomed manner Also if such a Testament be found cancelled and it is not known whether the Testator did willingly and wittingly cancel the same or no in this Case it shall be presumed to have been cancelled unadvisedly and shall take effect notwithstanding as if it had not been cancelled at all whereas in other Testaments the contrary is presumed And another Priviledge is That such a Testament is not void for incertainty as other Testaments are and therefore if the Testator say I make the Poor my Executors or I Will that my Goods be distributed amongst the Poor such manner of appointing Executors or Legacies is good Also if there be two Testaments found of divers Tenors and it doth not appear which is last in this Case if one of them be made ad pias causas that shall be presumed to be last made and take effect unless the other Testament be inter liberos and then that shall be deemed last not the Testament ad pias causas There are several other Priviledges reckoned up by some Authors to belong to this kind of Testament for Tiraquel in Tract De Privilegia piae Causae reckons up 170 Priviledges belonging to such Testament but most of them are here in England allowed to all Testaments though they be not made ad pias causas Franc. Mantic. de conject ult voluntat l. 6. Tit. 3. num 3. 43. l. 12. num 30. Tit. 1. Tit. 2. num 25 32. Swin part 1. sect 16. part 7. sect 8. num 8. sect 16. in fin Tiraquel de privilegia piae causae c. 12 16 56. 19. Unpriviledged Testaments are those which have not any Freedom or benefit contrary to the common course of ordinary Law but are tie◠to such observations as the Law requireth and hath appointed regularly for all Testaments Swin part 1 sect 17. 20. Now having spoken something of Testaments Solemn and Unsolemn Written and Unwritten Priviledged and Unpriviledged I shall speak a word or two of Wills and Codicils and so conclude this Chapter 21. The definition of a Last Will differeth but little from that of a Testament for a Last Will is thus defined Ultima voluntas est legitima dispositio de eo quod quis post mortem fieri velit A Last Will is a lawful disposing of that which any one would have done after death Franc. Mantica de conject ult voluntat l. 1. Tit. 4. num 18. Swin part 1. sect 4. 22. There is also another kind of Will called a Codicil and is defined after this manner Codicillus est voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit absque Executoris constitutione A Codicil is a just Sentence of our Will touching that which any one would have done after his death without the appointing of an Executor by force of which last words a Codicil is made to differ from a Testament for a Testament can no more consist or be without an Executor then a Codicil can admit of an Executor Swin part 1. sect 5. num 2. Franc. Mantica de conject ult voluntat l. 1. Tit. 8. num Justinians Inst l. 2. Tit. de Codicill is num 2. 23. These Codicils are most commonly made by the Testator after he hath made his Testament wherein he hath forgotten something which he hath a mind to put in and then it is done by way of Codicil and annexed to the Testament but whether it be made before or after the Testament it is to be taken and reputed for parcel thereof and ought to be performed as well as the Testament unless being made before the Testament it appear to be revoked in the Testament or be contrary to that which is contained in the Testament Reformatio Legum Ecclesiasticum Tit. de Testam cap. 5. Swin part 1. sect 5. num 11. Justin Inst l. 2. Tit. 〈◊〉 Codicill is num 1. Vigel method Jur. Civilis part 4. l. 9. cap. 23. in principio 24. When a Codicil is made by one that dieth Intestate the Legacies therein given must be paid by him that hath the Administration of the Goods of the Deceased as if he were Executor Bro. Abra. Tit. Devis numb 35. Swinbor part 1. sect 5. num 10. 25. In some respects Codicils and Testaments are quite contrary to one another for whereas a man cannot die with two Testaments because the latter doth always infringe the former except in some special Cases yet a man may die with divers Codicils and the latter doth not hinder the former so long as they be not contrary to one another Also where two Testaments are found and it doth not appear which was first nor which is last in this Case they are both void except in special Cases as is shewed before Numb 17 18. But if two Codicils be found and it cannot be known which was first or last and one and the same thing is given to one person in one Codicil and to another person in another Codicil here the Codicils are not void but the persons therein named ought to divide that thing betwixt them by the Civil Law Michael Grass The saur commun opinion sect Codicillus Swin part 1. sect 5. in fine CHAP. II. What shall be a good Testament or Will and what not 26. THat Wills and Testaments may lawfully appear it i◠necessary that there be sufficient proof either by writing or by witness and as to that know that two Witnesses are sufficient if they be without lawful exception Cowells Inst p. 118. Waterhouse on Fortesc fol. 350. Glan l. 7. c. 6. Bract. l. 1. c. 16. Swin part 4. sect 21. numb 2. 27. That is if they be not perjured persons or persons of infamous life as Malefactors or Law-breakers or Children Idiots Lunatick persons or of the Kindred or Alliance or Tenants or Servants to the party producing them or Capital Enemies to the party against whom they are produced or persons who are to reap benefit by their depositions or such like c. Cowel on Litt. fol. 6. Swin part 4. sect 21. Maschard de probat verb. princ Conclusio 1168. verb. Criminosus Conclus 469. verb. Furiosus Conclus 828. Swin part 4. sect 21. numb 7 8 9 10. Ref. Legum Eccles Tit. de Testamentis c. 17. Waterhouse on Fortescue fol 357 and 358. 28. But if the
of her Husbands Lands holden in Gavelkinde Co. on Litt. fol. 111. Old Terms of the Law verb. Gavelkinde 166. And of Lands held in Burrough English by the custom of some places the Widow shall have the whole and sometimes the half of her Husbands Estate Dum sola casta vixerit Co. on Litt. fol. 111. F. N. B. 150. Litt. li. 2. cap. 10. 167. By the Stat. 32 H. 8. cap. 1. every one except a woman Covert an Insant under the age of one and twenty years or a person De non sane Memorie may be their last Will and Testament in writing or other Act lawfully executed in their life-time give dispose Will or devise all such Lands Tenements and Hereditaments as they are solely seized of in Fee-simple or as much as of right in them is of all such Lands Tenements and Hereditaments as they are seized of in Fee-simple in Copercenary or in Common in Fee-simple to any person or persons except to Bodies politick and corporate And two parts of three of all such Lands Tenements or other Hereditaments as they hold in Knights service See now the 12 Car. 2. cap. 24. 32 H. 8. cap. 1 34. and 35 H. 8. cap. 5. Fynch Law pag. 169 170. Co. on Litt. fol. 111. b. Swin part 3. sect 3 and 4. And Wingates Abr. of Stat. tit Wills 168. All manner of Goods and Chattels real and personal moveable and immoveable may be devised by Will or Testament except in some certain cases following Perkins sect 511. Lind. in C. Stat. de Testament li. 3. Provinc Const Cantibr Swin part 3. sect 5. Cowels Inst pag. 140. 169. As where two men are joyntly possessed of Goods and Chattels real or personal one of them cannot make his Will and bequeath his part to another for when he dyes his part goes to the survivor and so it is in Lands Tenements and Hereditaments also Perkins sect 500 526. Dr. Stud. li. 1. cap. 6. Litt. li. 3. cap. 3. Cowels Inst pag. 140. Clerk of Assize pag. 63. 170. Nor can a Spiritual person or Master of a Colledge or Hospital or Mayor of a City devise those things which belong to their Church Colledge Hospital or City nor can the Crown or Jewels of the Realm be devised by Will but they may be given by Letters-patents and a Parson by Will may devise the Corn growing on the Glebe-Land at the time of his death Perkins sect 496 and 497 498. Brac. 1. li. 1 2. cap. 14. Dr. Stud. li. 2. cap. 39. Cowels Inst pag. 125. F. N. B. devise 5. Exer. 108. Swin part 3. sect 6. 171. The Husband cannot devise such Goods as his Wife hath as being Executrix to another nor such things as are in Action as debts due to her before Marriage by Obligation or Contract unless he and his Wife sue and recover the same during Marriage or that he renew the Bonds and take them in his own Name otherwise after his death they remain to her Co. on Litt. fol. 351. b. 9 H. 6 52. 21 H. 7. fol. 29. Kitchin fol. 251. a. Finches Law pag. 44 168. Bro. Testam 11. Swin part 2. sect 9. num 13. 172. Also if the Husband be possessed of a Terme or Lease for years in right of his Wife he cannot devise it by his VVill but he may grant it away or dispose of it in his life-time or if he make no disposition thereof yet if he survive her then it falls to him and in such Case he may devise it by VVill. Dame Hales ca. Plo. com fol. 260. Co. on Litt. fol. 251. a. Kitchin pag. 267. b. 7 H. 6 1. Perkins sect 560. Dr. Stud. li. 1. cap. 7. 173. An Administrator cannot devise those Goods by VVill which he hath as Administrator to another person dying intestate but Administration thereof shall be committed to the next of Kin to the first Intestate neither can an Executor devise those Goods by way of Legacy which he hath as Executor but he may make his Testament and appoint another Executor who shall have the Administration of the same Goods to the use of the first Testator Fynches Law pag. 168. Bro. Adm. 7. F. N. Br. Adm. 3. 31 E. 3. cap. 11. Plo. com fol. 525 526. Swin part 3. sect 6. 174. Those things also which belong to the Heir after the Testators edath cannot be devised by VVill as Glass-windows VVainscote Tables dormant and Benches affixed thereunto or mortifed in the Earth Furnaces Coppers Leads Ovens c. set in Morter or Stone nor Trees nor Grass growing c. Bro. Exer. 65. Cowel Inst pag. 140. Co. 4. Rep. fol. 62. Swin part 3. sect 6. Noyes Max. pag. 106. 175. But Corn growing on the Land at the time of the Testators death may be devised by VVill by those who are seized in Fee-simple Fee-tail or for life and also by Tenant in Dower Tenant by the Curtesie and Tenant in Mortgage and their Tenants and he who is seized in right of his VVife although theiâ— Estates do determine before the said Corn be ripe and severed except in some special Cases Perkins sect 512 514 522. Dr. Stud. li. 1. cap. 20. 176. If a woman Tenant in Doweâ— sow her Land and afterwards marry and the Husband dyes before severance of the Corn in this Case it remains to her and he cannot devise it but if it had been sown after the Marriage he might have devised it Clerk of Assize pag. 57. Abr. Dr. Stud. li. 1. cap. 20. 177. If Tenant for life have Hops growing and dye a little before the severance of them in this Case the Executors or Administrators shall have them and not he in Reversion or Remainder for the Hops are accounted as Emblements they growing by Manurance and Industry of the Owner by the making of Hills and setting of Poles Vide Miâ—h 11 Car. 1. B. R. Latham and Attwoods Case Cro. 1 part fol. 396. 178. As Goods and Chattels may be devised as aforesaid it is now further observable what a quantity or proportion of Goods and Chattels the Testator may devise by his VVill observe therefore that if the Testator have neither VVife nor Childe at the time of his death hâ— he may then dispose and devise alâ— the cleer residue of his Goods and Chattels over and above the discharging Funeral-expences and hiâ— debts Lindwood in C. Statut. dâ— Testament li. 3. Pro. Const. Cant. verbum defunct Brac. li. 2. cap. 26. Swin part 3. sect 16. 179. But it is the custom of many places especially within the Province of York that if the Testator have a Wife or Childe at the time of hiâ— death that then he can but dispose of half of such his cleer Goods and the other half is to go to the Wife or Childe and if he have both a Wife and Childe or Children at the time of his death then the Goods are divided into three parts whereoâ— one part is to the VVife another
Goods in his hands of the first Testators the surviving Executor may have an Action against him for the same and if the surviving Executor do afterwards dye intestate yet cannot the Executor of the Executor meddle with the Goods of the first Testator but Administration thereof is to be committed to the next of Kin to the Testator and if the Executor of the Executor or who dyed first meddle with the Goods then he may be sued by the Creditors as Executor in his own wrong Bro. Exec. 92 99 149 160. Swin part 4. sect 20. 259. If one make another his Executor and dyeth and the Executor before he hath proved the Will maketh another his Executor and dyeth in this Case Administration of the first Testators Goods with the Will annexed shall be committed to the next of Kin of the first Testator and not to the Executor of the Executor unless the first Testator did bequeath his Goods as his Debts Funeral-expences and Legacies paid to the Executor named in the Testament and then in such case the Administration of the first Testators Goods is to be committed with the Will annexed to the Executor of the Executor Dyer fol. 372. num 42. M. 23 El. Isteds Ca. Swin part 6. sect 3 260. Note that if divers be appointed Executors and one of them doth sell some of the Testators Goods for a sum of money then that Executor which sold the Goods may sue alone for the money due for the same Swin part 4. sect 20. Bro. Exec. num 65. 261. Where divers persons are made Executors and the Testator gives them power to sell his Lands in this case though some of them dye or do refuse the Executorship yet the others who take upon them the charge and burden of the same Testament and Will may sell the Lands except in some Cases Perkins sect 545. Pasch 46 E. 3. Devise 8. 21 H. 8. cap. 4. 39 〈◊〉 pl. 17. Co. on Litt. fol. 113. Swin part 6. sect 3. Dyer fol. 371. See Howel and Barnes case Mich. 10 Car. 1. Cro. 1 part 262. As where the Testator Deviseth that after his death his Lands shall be sold by his Executors with the assent of A B maketh his Wife and a Stranger his Executors and dyeth and then the Wife dyeth and A B also in this Case the Authority of selling the Lands is extinct and gone by the death of A B without whose consent it cannot be sold and therefore if the surviving Executor should sell such sale is void Brownlowes part Rep. fol. 100. Mich. 5 Eliz. Dyer fol. 219. Fulb. fol. 41. Swin part 6. sect 3. 263. But if a man Devise by his Will that A B and C D whom he makes his Executors shall sell his Land for payment of his Debts and they refuse to be Executors yet notwithstanding they may sell the Lands because they are named by their proper names or if one of the Executors dyeth and the other taketh upon him the Executorship and afterwards selleth the Lands such sale is good 15 H. 7 12. Perkins sect 548. 19 H. 8 9. Swin part 6. sect 3. 264. But where a man by his Will maketh A B C and D his Executors Devises his Lands to the said A B C and D by their special names and to their Heirs and further deviseth that the Devisee shall sell his Lands for payment of his Debts and one of the Executor refuses to intermeddle in this case it hath been held that this being a special and joynt interest the other three Executors thereupon cannot sell without their Compaâ—ion Mich. 29 Eliz. B. R. Bonnisant and Sir Rich. Greenfields case Godbolts Rep. fol. 77. And sec 26 El. B. R. Vincent and Lees case Co. on Litt. fol. 113. 265. My Lord Cooks advice is to such who devise by their Wills their Lands to be sold that they make it as certain as they can as that the sale be made by his Executors or the Survivor or Survivors of them if his meaning be so or by such or so many of them as take upon them the Probat of the VVill c. and it is better to give them an Authority then an Estate unless his meaning be they should take the profits of the Lands in the mean time and then it is necessary that he deviseth that the mean profits be assets in their hands for otherwise they shall not be Assets Co. on Liâ—t fol. 113. 266. If a man devise his lands to be sold by his Executors and to distribute the profits to Pious uses yet after the death of the Testator the Inheritance shall descend to the Heir and shall remain in him until the Executors sell the same and the Heir ought to receive the profits thereof till the time of the sale but if the Testator devise his lands to his Executors which he willeth to be sold and the money to be distributed to Pious uses here the Executors after the Testators death shall receive the Profits and not the Heir for in the first case the Executors have only an Authority to sell and in the last case they have the frank-Tenement Brownl 2 part Rep. fol. 136. Noyeâ— Max. pag. 100 101. 38. Ass Pl. 3. Perkins sect 541 and 543. Swin part 6. sect 3. num 7. Cowels Inst pag. 139. 267. Note that the Executor of an Executor cannot sell the land of the first Testator who by his Testament gave power to his Executor to sell the same but it shall go to the Heir unless the Will be otherwise Bro. Tit. Executor 3. Perkins sect 507 554. Swin part 6. sect 3. num 11. in fin 268. If a man willeth that his Executors shall joyntly sell his land or that his Executors and his Feoffees shall joyntly sell his land in such case if one Executor sell to one and the other to another or if the Executors sell to one and the Feoffees to another and afterwards they joyn in the sale to a third person in such case the last sale onely is good and the other voyd Perkins sect 546 and 553. 269. If a man willeth his lands shall be sold for the payment of his Debts and express not by whom it shall be sold then the Executors shall sell it but if he willeth his land to be sold and express not by whom nor for what in such case it hath been held that such Devise is void and the land shall not be sold but descend to the Heir Perkins sect 547. 15 H. 7. 12. 270. The Executors or Administrators of Tenants in Fee-simple Fee-Tayl and Tenants for term of life of Rent-services Rent-charges Rent-sects and Fee-farms by the Stat. of 32 H. 8. may either distrain or have an Action of Debt against such Tenant as is behind and in Arrear to the Testator at the same time of his Death for such Arrearages of Rent as ought to have been paid to the Testator in his life-time and if the Tenant who was in arrear be dead then they may
have an Action of Debt against his Executors or Administrators for such Arrearages The Husband also who is seized in right of his Wife of any Estate in Fee-simple Fee-tayl Fee-farm where any such Rents are behind in the Wives life whether it be before or after Marriage and unpaid at the time of her death may have the like remedy and so may his Executors or Administrators Co. on Lit. fol. 351. b. 32 H. 8. cap. 37. Swin part 6. sect 3 num 8. Pasc 23 Eliz. Dyer fol. 375. 271. Actions of Account were given to Executors by the Stat. of Westmin 2. and Actions of Trespass done â—o their Testator as for his goods and Chattels carried away were given by â—he 4 E. 3. 7. and by the 25 E. 3. Exeâ—utors of Executors have Actions of Debt Account and of goods carried way of the first Testators and Excution of Statute-Merchants and Reâ—ognizances made to him and are â—lso lyable to the Actions of those to â—hom the first Testator was indebted â—o far as the goods of the first Testaâ—or will extend but the Goods which â—id belong to the first Testator shall â—ot be put in Execution for the Debt â—f the second Testator Wingate Abr. Stat. Tit. Executors Co. 2 part Inst fol. 404. Finch pag 173. Noyes Max. pag. 102. Westm 2. c. 23. 25 E. 3. c. 5. 4 E. 3. c. 7. Swin part 6. sect 3. Plo. Com. fol. 286 287. 272. Note that one Executor cannot sue another for the possession of the Testators goods for the possession of one is as the possession of both and therefore one of them hath no remedy against the other but in Chancery unless there be a Legacy lefâ— unto one of them in particular and then he may sue for that Swin part 4. sect 20. num 14. Bro. Exec. 98 104. F. N. B. Exec. 32. Plo. Co. fol. 343. Swin part 6. sect 3. num 20 Tothils Rep. pag. 8. 273. If an Infant be made Executor Administration durante minorâ—aetate may be committed to the Mother or other Friend of the Infant which shall cease and be void wheâ— the Infant comes to the age of seventeen yeers 41 42 El. C. B. Prince case Co. 5 lib. fol. 29. Noyes Max. pag. 105. 274. But this Administrator during such Minority cannot sell or Alienate any of the Goods of the deceased unless it be upon necessity as for the payment of the deceaseds Debts or that the goods would otherwise perish for he hath his Office of Administrator Pro bono commodo Infantis and not for his prejudice and cannot pay Legacies unless there be assetts to pay debts neither can he let a Lease for a longer time then whilest the Executor shall be under age Noyes Max. pag. 106. Co. 5 li. Rep. fol. 29. 275. If a man make two Executors one of seventeen years of age and the other under in this Case Administration during the Minority of the other is void because he of seventeen years of age may execute the Will and therefore if such Administrator should bring any Action the Executor of seventeen years of age may well release the Debt Piggot and Glascoignes ca. Brownl 1 part Rep. fol. 46. 276. And if a Woman under the age of seventeen years be made Executrix and the Adminstration is committed duranteminori aetate and then she takes an Husband of full age in such case the Administration shall cease Co. 5 li. Rep. fol. 29. 277. An Infant-Executor upon payment or satisfaction to him of any of the Testators Debts may give a discharge for the same and it is a good bar against him afterwards but if he should give a release without payment or satisfaction in such Case he is not barred from the recovery thereof afterwards by such release 28 El. B. R. Russels ca. Co. 5 li. fol. 27. Tr. 13 Car. 1. B. R. Kniverton and Lathams ca. Cro. 1 part Rep. fol. 352 353. Noyes Max. pag. 106. 278. If a woman during the Coverture be named Executrix she alone can neither sue nor be sued without her Husband but she alone may do any extrajudicial act as the paying of Debts or Legacies or the receiving or releasing of any Debts due to the Testator and so may her Husband alone without her though she alone be Executrix which acts of his shall not onely binde her during Marriage but after also if she out-live him Co. 5 li. fol. 27. F. N. B. Exec. 23 30. Bro. eod tit num 147 151 152 178. Kellowayes Rep. fol. 127. num 74. Swin part 5. sect 1. part 6. sect 3. num 17. 279. An Executor may release an Action before Probat although that before Probat of the Will he may not have an Action but if B release and after take Administration that shall not bar him for the right of Action was not in him at the time of the release as it was in the Executor 1 Jac. C. B. Middletons case Co. 5 li. fol. 28. Perkins sect 482. Tr. 7 H. 4. 8. Glan li. 7. cap. 7. Fleta li. 2. cap. 27. Co. on Litt. fol. 292. b. 18 H. 6 23. Hernes Law of Con. pag. 86. Cowels Inst pag. 119. 280. If an Executor take in the Testators Bond from one of the Creditors and gives his own Bond for the Money or if the Testators Creditor be indebted to the Executor in so much as the Testator was indebted and the Executor releases to him in both these Cases it is a good Administration by the Executor and they shall not be charged as assets in his hands although in the first Case he get a longer day of payment Pasc 30 El. C. B. Stampe and Hutchings case Leonards Rep. 111 〈◊〉 See Bryers and Goddards case 〈◊〉 Rep. fol. 250. And Arlush and â—â—â—lisons case Claytons Rep. pa. 88. 〈◊〉 48. 281. But if the Executor plead â—ully Administred and give in evidence Bonds cancelled and taken in or Acquittances for Money this will not serve unless there be proof of real payments made upon such Bonds and Acquittances or of new security given Lent-Assize 24 Car. 1. apud Ebor. Scotts case Claytons Rep. pag. 112 pl. 193. 282. If there be divers Executors and they are all sued and one of them onely pleads yet Judgement shall be against them all but the costs shall be against him which pleads if the other do confess or suffer judgement to go by default Brownl 〈…〉 pag. 274. 17 E. 3 45. b. And 〈…〉 Jac. C. Banc. Lawry and Aldrod◠〈…〉 Brownl 2 part Rep. fol. 183 〈…〉 186 187. 283. If an Executor 〈…〉 one of the Testators 〈…〉 he plead fully Administred 〈…〉 Jury finds assets in his hands 〈…〉 they be but to a small value yâ—◠〈◊〉 shall be condemned in the whole debt because of his false plea. M. 4 Jac. B. R. Mary Shiplyes ca. Co. 8 li. fol. 134. Clerk of the Assize pag. 65. 284. If the Executor promise to pay a Debt of the Testators this shall binde him though he have not assets Summer