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
other the goods chattels or credits he hath as Executor the property not being altered for that he hath not them properly as his own or to his owne use onely he may make a continuation of the Executorship and his Executor shall have them as Executor to the first Testator as was resolved by the Judges of both Benches in the late Queenes time And if he be Administrator the bequest is then also voide nor then will they goe to his Executor but to a new Administrator but on his death-bed he may give them by Word or Deed though not by Will Next if a man have debts owing to him as many have much it is considerable whether by way of bequest in his Will hee can give away these to any from his Executors And doubtlesse he cannot effectually in Law they being not subject to assignement unto any except the King So as if he give such a debt to A. and such to B. yet must the sute for them be in the name of the Executor and so also the Release or Acquittance for them and not in their names to whom the bequests is But when they be received if there be no debts to pay the Executor ought to deliver them to the party to whom the bequest is and therefore may be compelled in Court of Conscience or in the Spirituall Court Therefore the Case of the bequeathing money payable upon a Morgage is in this manner to be understood to be good and not otherwise as I take it He that is joyntly with any other estated in Lands or goods can give no part by his Will but all will survive but by Act in his life hee may dispose of his part and the Assignee may dispose of his moiety by Will yea though it be halfe an Horse or Oxe that cannot be divided So of a Lease of Lands or Tithes or Grant of goods to two habendū one moyety to the one and the other moyety to th' other each may give his moyety by Will But if one be possessed or estated for yeares by Lease Wardship or Extent c. in the right of his wife or have the next avoidance of a Church in her right he cannot by Will give or bequeath any of these but notwithstanding they will remaine unto his wife upon his death but yet his Gift or Grant of them taking effect in his life time would binde his wife and carry away the interest from her If one be Tenant for the lives of one or more others as oft times men take Leases for lives of yonger persons than themselves this cannot be by Will disposed of for that it is no chattell nor is it within the Statutes of Wills for that it is no state of inheritance Therefore let the party looke to convey it in his life time lest it goe to an Occupant viz. him who first shall enter If it be a State in Land hee must either make Livery have a bargaine and sale inrolled or covenanted to stand seised to the use of his wife or some of his blood or make a Lease for yeares determinable upon those lives Good it be by bargaine and sale for yeares if the thing be in Lease that so without Inrolement or Atturnement the Rent may passe else a bargaine and sale may be made for a moneth or such like time and then a Release or Grant of the reversion in stead of Levery Seisin But if a man have a Lease for never so many yeares determinable upon life or lives that is if such or such live so long which unskilled persons call a Lease for lives this State may well enough be given and disposed by Will because it is but a chattell If a man seised in Fee or in Tayle of Land having Corne growing upon it and by his Will doe give the Corne and die before severance this is a good bequest because the Corne should have gone to the Executor So it is also of a Parson touching his Glebe and a man seised in the right of his wife or his owne right but for life But as for trees growing upon the ground these can no otherwise be given by Will then as the Land it selfe upon which they grow may be given of which matter as not pertaining to the Office of Executors viz. How and in what manner Lands may be given by Will I entend not to treate in these discourses Of the Revocation and Countermand of Wills and new Publication HAving considered of the making of Wils and Executors Let us before wee come to the Probat consider of Revocation for that may take away the force of a Will rightly made A Will therefore having two parts viz. Inception which is the making and Consummation which is the death of the Testator or maker of the Will there is power in him at any time before death to revoke or alter his Will at his pleasure Consider we therefore of Revocations and also of new Publications or Reaffirmance of Wills in whole or in part As therefore a Will may bee made by Word So also may a Will made in Writing be by Word revoked or disanulled for since every making of a later Will is a Countermand and suppression of the former Will and since a Will may be made Nuncupatively or by Word and so by making a verball Will one may revoke a Written Will It will thereupon follow that one by Word may expresse the alteration of his minde thus farre that the Will by him formerly made shall not stand but be revoked and annulled and this will stand and be effectuall so as if he after dye without making any new Will or new Publication or Reaffirmance of the former he dyeth intestate or without will As a Will may bee wholly revoked so also in part Hereabout a good resolution was in a Kentish Case where one Ryete by his Will in writing did give some Gavel-kinde Land to one Harrison and five dayes before his death said in the presence of witnesses that this gift should not stand and that he would alter it when he came home desiring them to beare witnesse of his Revocation Now before he came home he was killed by the said Harrison who caused the Will in writing to be proved and after he was attainted and hanged for the murther and his Sonne by the Custome of Kent viz. the Father to the bough and the Sonne to the plough entred into the Land and this manner of Revocation by word onely was held sufficient although the Will in writing were not cancelled nor defaced And the like resolution for verball Revocations is implyed in the Case of Forse and Hembling where it being resolved that a Feme Covert or marryed woman by word Countermanding and Revoking her Will formerly made when she was a sole or unmarryed Woman this was not effectuall nor of force by reason of her Coverture taking away the freedome of her
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
him in service till a fit time of providing him a new Master and fit for him not to depart suddenly Now for things personall without life These are evident viz. all Householdstuffe Implements and Vtensills Money Plate Jewells Corne Pulse Hay Wood felled and severed from the ground Wares Marchandise Carts Plowes Coaches Saddles and such like moveable things More doubtfull Cases touching things personall FIrst touching things living If the Testator had any tame Pigeons or Deere or Conies or Fesants or Partridges these all aswell as Chickens shall goe to the Executors so though not tame if they were taken and kept alive in any Roome Cage or like Receptacle as Fesants and Partridges often be so fish in a Trunke as also young Pigeons though not tame being in the Dovehouse not able to flie out yet their Dammes the old ones shall goe to the Heire with the Dovehouse And if the Testator had any reclaimed Hawkes they also as Chattells Personall shall goe to the Executor because they are things commonly vendible And whereas Hounds Greyhounds and Spaniells be not so commonly bought and sold nor so anciently have beene yet are they now growne to be a Marchandize and why not for although they be for the most part but things of pleasure that hindereth not but they may be valuable as well as Instruments of Musicke both tending to delight and exhilarate the spirits A cry of Hounds hath to my sense more spirit and vivacity than any other Musicke Adde hereto that there may be some profit and advantage gotten by them both quoad adeptionem boni ademptionem mali the getting of some good food and the preserving of others as Lambes Conies Fish Pultry by killing Foxes wilde Cats and others which destroy them And wee know that money is recoverable in dammages for taking away such or a Mastiffe serving to keepe an house So of Ferrets to catch Conies c. Therefore they are valuable But it may perhaps be objected that none of these above are Cattell and therefore not replevisable consequently no property in them for when more then one living Chattell is distrained the replevin is to be by the name of Averia signifying Cattell For answer not to insist that one may have property in divers things whereof no Replevin lyeth as Corne or Hay not in Sackes nor Cartes money not shut in bagge nor box c. I further say that even the word Averia may be applyed to these for so I find it to Hens and Capons in the Booke of Entries viz. in the writ of Curia Claudenda where the Plaintiffe complaines of the Defendants not making his Mounds per quod averiaipsius A. viz. Capones galinae alia Averia ipsius A. that is whereby his Cattell viz. Capons and Hennes and other his Cattels came into the Plaintiffes House and Garden to his dammage c. And both Newport and Newdigate hold that a writ of replevin lyeth of such things though Brudenell were of contrary opinion yet he also held an action of Trespasse maintainable for taking of them and therefore admitted a valuable property in them Now come we to things without life and first to those abroad in the Fields Put the case that a man dyes in Iuly before Harvest I meane seised for life or in Fee or Taile in his owne right or his Wives or estated for yeares of Land in the right of his Wife being sowne with Corne or any manner of Graine the common saying is Quicquid plantatur solo solo cedit yet this shall goe to the Executor of the Husband and not to the Wife or Heire who shall have the Land but Hay growing viz. Grasse ready to be cut Apples Peares and other fruite upon the Trees shall goe to the Wife as also if they had beene upon a mans owne Land of Inheritance they should goe to the Heire though the Corne should goe to the Executor The reason of difference is because this later comes not meerely from the soile without the industry and manurance of man as the other doe and I take Hoppes though not sowne if planted and Saffron and Hempe because sowne to pertaine as Corne to the Executor All those yet shall passe to one to whom the Land is sold or conveyed if not excepted though never so neere reaping felling or gathering But what if the Wife had the Lease for yeares as Executor to some former Husband or other friend and the Husband after sowing dyes who then shall have the Corne Certainely the Corne shall goe to the Executor of the last Husband at least so much as is more then the yeares value of the Land or the making it up by addition of other things for the value is to be assetts for payment of debts and Legacies Put the case againe that the Husband and Wife were joynt-tenants of the Land and then the very Corne growing shall survive to her together with the Land and though the Husband sowed it yet shall it not goe to his Executor Being in consideration of things growing on the ground let us not forget to thinke of Trees sold by I. S. seised of the Inheritance of the Land to I. D. who dyeth before felling this Interest is a Chattell which shall goe to the Executor and not to the Heire of I. D. but some colour may be that these because fixed to the soyle and Freehold are reall Chattells as the Interest in Land is and not personall So also of Trees Excepted by him who selleth the Inheritance of the Land but in both cases I conceive this interest to be personall and not reall for that as it is a propriety of Chattell in the Vendee or Vendor with exception it stands in consideration severed and abstracted from the soyle or ground where the Trees grow though the Trees be not actually severed by the Axe from their mother Earth But if the Lessor for yeares or life except the Trees these continue parcell of the Freehold and Inheritance And after Corne reaped and before the Tithe set out the Inheritor of the Tithe dying I thinke the Executor and not the Heire shall have the Tithe after set out Now Let us come home to the Testators house and see in and about it some doubts what pertaines to the Heire and what to the Executor Question hath beene both of old and of late touching Coppers Leads Furnaces Fat 's for Dyers or Brewers Pales Rayles Glasse in Windowes Tables Dormants Wainscotes Doores Lockes Keyes and such like to whom these should goe whether to the Heire or Executors And in the latter end of Henry the 7. his time an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall the Heire brought an action of trespasse against him for so doing and it was adjudged for the Heire viz. that this was to goe as part of the Freehold and Inheritance to the Heire and
shall be assetts to charge the Executor So also of Actions of Detinue and of covenant for any thing personall or any Chattell Reall Lease Wardship or the like But perhaps some will doubt of Covenant touching Inheritance viz. the assurance of Lands or enjoying thereof free from this or that incumbrance or the like Yet even in those cases if the Covenant were broken in the Testators life time I thinke clearely the Action is accrued to the Executor for that his Testator was to recover dammages in the Action of Covenant for that breach and he being intituled to these dammages as principall and not any accessary thing in that action the Law hath cast that action upon the Executor And that is the cause why if waste be committed in the life of the Lessor by his Lessee and then the Lessor dyeth his Heire can have no Action for this waste viz. because he cannot recover the treble dammage as neither can the Executor have it for that he cannot recover locum vastatum the place wasted the Inheritance whereof is in the Heire That an Executor at the Common Law could not maintaine an Action of trespasse for goods of his Testator taken away in his life time seemes to be implyed by the Statutē in the time of King Edward the third Which gives such action Yet it seemes that a Replevin was mainetaineable by the Executor at lest in some cases for goods taken or distrayned in the Testators life time But in case the distresse were for Rent Service it is said a little after the making of that Statute that the Lord may not now avow for his Rent or Service because his Tenant is dead but must set forth the matter and thereupon justifie to excuse himselfe from answering dammages and the Executor shall by this Action recover the Cattell or Goods and that by the Common Law saith the Booke though the Statute of Marlebridge had never beene made for that the property remained in the Testator Note it speakes not at all of the said Statute of 4. Edward the 3. But Newton in the time of King Henry the 6. would have it that the Executor in that case should not have a Replevin but an Action of Trespasse grounded upon the said Statute viz. 4. Ed. 3. Which me thinkes cannot be by any meanes by reason of the Statute of Marlebridge cap. 3. Non ideo puniatur dominus c. for the Executor as well as his Testator is thereby restrayned as I thinke from the Action of Trespasse against the Lord. As for that no Avowry can be made upon the Tenant that is now remedyed by a late Statute The other Statute hath beene taken to extend to other things then Goods moveable for where a Church becomming voyd a stranger presented thereunto wrongfully and the Patron dyed it was resolved in the late Queenes time that the Executor might by the equity of the said Statute mainetaine a Quare impedit But whether an Action of Trespasse lyeth for an Executor against him who spoyled the Testators Corne Grasse or Wood growing hath beene questioned but no where resolved to my knowledge I thinke it may lye with some difference First for that the Statute of 4. Edward the 3. doth not onely speake of Goods carryed away as limiting the Law to that trespasse soly and particularly but speakes generally of Trespasse done to Testators and then brings in that particular of goods as one Instance Now there be many cases of instances or ensamples given in acts of Parliament which yet doe not restraine the remedy or purven to that particular or from extending to other cases of like nature Thirdly the Statute speakes of Trespasses remaining unpunished which it meant to redresse But it should still leave many unpunished if it should have no larger extent than to that one singular trespasse of Goods taken away viz. moveables Againe the Testator was clearely intituled to a recovery of dammages for this other trespasse which if he had recovered should have come to his Executor Yea the things themselves all if felled in the Testators life and part though not felled should have come to the Executor therefore also the dammages recoverable in liew thereof out of which recovered the debts and Legacies of the Testator are to be satisfied Besides this Action of Trespasse is a thing severed from the state of the Land so as if the owner thereof had after this trespasse done aliened the Land yet had this Action remained to him as I take it clearely And why not as well as where a Trespasse is done upon the Land of the Lessee and then the terme expires this doubtlesse doth not take away his Action nor his Executors But me thinkes here may be some differences probably taken as first betweene a Trespasse in destroying or taking away Come growing and a trespasse in Grasse or Wood growing for the first being of that nature as that though the Owner had a state of Inheritance in the Land wheron it groweth should have dyed before severance and felling Yet it should have gone to the Executor and not with the Land to the Heire therefore doubtlesse doth the Action for destroying or taking away thereof accrue by the operation of Law to the Executor in liew of the thing taken or destroyed Otherwise perhaps of Wood or Grasse Which by the Owners death should have gone to the Heire and not to the Executor And yet here againe another difference me thinkes may be betwixt Grasse and Grasse viz. betwixt that in Pasture and that in Meddow yearely mowed and turned into Hay not lest to be consumed by the mouthes of beasts as that growing in Pasture For as the Law distinguisheth betweene these Soyles gives precedency to Meddow and makes it waste for a Lessee to Plough it up not so for Pasture Yea Tithe is payed of Hay but not of Grasse growing in Pastures so the Meddow Grasse being in the Owners purpose and intention as a thing severed from the soyle should mee thinkes so be also in the eye and estimation of the Law and therefore stand in a different state and account from Pasture Grasse A third difference may be in the manner of the Trespasse viz. Where the Meddow Grasse is eaten up with Cattell by a Trespasser and where by him mowed and carryed away as Hay for in this latter case an Action of Trover and Conversion for so many loades of Hay is doubtlesse maintainable by the Executor though it should be admitted that in the other case of consumption by the mouthes of beasts without severance no action should be maintainable by the Executor which yet I admit not but thinke the contrary probable For when Meddow ground which yearely conceiveth Sol sine homine generat herbam shall be ready to be delivered of her burthen if a stranger putting in an head of Cattell which swallow up and tread downe this fruit of her wombe before the Mower
with his sithe come as a Midwife to helpe her delivery if then by the hasty death of the Owner before Action brought this great Trespasse should be dispunishable it were contrary as me thinkes to the purpose of the said Statute and a great defect in the Law Yet here perhaps touching this a fourth difference may be or arise out of the time of the death of the Owner viz. where he dyeth before time of Mowing and where not for Dato that in the former case because if such destruction or consumption had not beene yet the Owner dying before severance this should not have come to the Executor but have gone with the soyle to the Heire that therefore the Executor who is not damnified should recover no dammages Yet in the other case the Owner living till after Hay time clearely passed viz. till the end of August me thinkes now since this fruite of the Meddowes wombe should have beene a Chattell severed had not this Trespasser made unlawfull prevention Therefore the Executor to whom the same should have come towards the performance of the Will should have out of the said Statute an Action and remedy reached unto him to recover recompence in dammages for this wrong done in retardationem Executionis Testamenti A fifth and last difference may perhaps be in the state of the Owner for Posito that where the Land is his Freehold or Copyhold Inheritance no Action should be given to his Executor for Wood or Grasse taken or destroyed in his life time yet where he is but Tenant for yeares Guardian or Tenant by extent so as the very state in the Land was to come and is come to the Executor together with Quicquid plantatur solo me thinkes the Executor should have together with the state in the soyle the Action to punish the Robber of or Trespasser upon the soyle Thus having scanned and sifted to the best of my ability all differences and circumstances of this point how farre I am wide and wherein right Aliorum sit judicium or rather Altioris esto judicii But this is cleare that wheresoever Executors doe recover any dammages for trespasse or other wrong done to their Testator the money recovered at least if Execution be had or money received will be Assets in their hands as well as debts recovered upon Bonds or Bills or Lands by them taken in Extent upon Statutes Recognizances or Judgements Yea without ever having these moneyes Executors may make them assets in their hands viz. by making Releases or Acquittances or acknowledgement of Satisfaction for this amounteth to a Receipt and chargeth the Executors towards the Creditors with the whole penall summe though happly they receive but part as the principall or some like proportion Therefore there is great caution to be used by Executors in this kinde that unlesse they be sure they have Goods sufficient to pay all Debts and Legacyes they make no Release Acquittance or Acknowledgement of Satisfaction for more then they doe receive be it debt or dammages And the like caution to be used by them touching submission of debts or dammages to arbitrement whereby discharges of the same may grow for the submission to the Arbitrement being their voluntary act although the Arbitrators by their judgement doe discharge the debt or dammage in part or in whole yet shall the Creditors have like remedy thereupon against the Executors as if they had released or which is more received the same Other Actions there be of discharge which as the Testator himselfe in his life time might have had so may his Executor after his death viz. Writs of Error Attaint Disceyt Avdita Querela Identitate nominis But this last is given by Statute Whatsoever is regained by any of these wayes as unduely lost by the Testator shall also be Assets Speciall cases pertinent to the Premisses 1. Chattells come to Executors from the Testators yet not Assets 2. Assets which be no Chattells 3. Things in Action and in the personalâ—y turned into Chattells Reall e contra AS to the first I exemplifie thus A. makes B his Executor and dyes B. makes C. his Executor and dyes The Goods left by A. to B. as Executor farre exceedes his Debts and Legacyes or let us suppose no debts nor Legacyes of A. and that B. dyeth much in debt above the Goods hee leaveth and did make no alteration of the property of the goods of A. but meerely left them to C. his Executor Now shall not the Goods which came to B. as Executor of A. and so from B. to C. be lyable in Law to pay the debts of B yet in Conscience me thinkes they should and that C. should not receive them to his owne use as in Law he may where A. left no debts But if A. making B. Executor did also by his Will give him all his Goods and he in his life time made election to have them as Legatee or by his Will did so dispose of them or appoint them to goe as the goods hee had as Executor could not be given or disposed Now by this election they were altered in property from being his as Executor and so as his owne goods should be liable to his debts But things in action could not be so given or disposed viz. Debts c. yet if D. were indebted to A. one hundred pound and B. his Executor tooke new bond of him or another for it giving up the old Bond now was it become his owne duty and so shall stand in his Executor Another instance of this thus If A. patron of the Church of D. grant to B. the next avoydance the Church becommes voyde B. dies before he presents his Executor presents and hath the benefit of preferring his sonne or friend yet shall this make no Assets in his hands for payment of debts for that hee could not lawfully take money to present But if B. had dyed before the Church had become voyd Then because the Executor might lawfully have sold it the value should be Assets in his hands as I conceive except perhaps the incumbent had died so hastily after B. that the Executor had not time convenient to finde out a chapman and to sell it If in the other Case a stranger had presented and got his Clarke admitted and the Executors of B. had in a Qua. Imp. recovered dammages the money so recovered should have beene Assets Thus much of the first viz. that some things of the nature of Chattells may come to Executors and yet not be Assets Touching the second viz. that some things may be Assets in the hands of Executors which yet are no chattells I shall give but two Instances First where a man leaveth a Villen for yeares to his Executors and the Villen purchaseth Land in Fee-simple and the Executor entreth into the Land now hath hee Fee simple therein and this Land is Assets for payment of the Testators debts
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
as I conceive ability to sue the debtor in his owne name but in our law it is otherwise the suit must be in the executors name for a debt or thing in action cannot be assigned except by or to the King and only at the common law is the debt recoverable but the Spirituall Court may force the executor to sue or let his name be used in the suit for and by the legatee If one bequeath all his moveables debts due to him are not bequeathed nor corne nor fruit growing on the ground nor stone nor timber prepared for building as the Canonists and Civilians hold On the other side if one bequeath the moiety of all his goods the legatee shall have only the moiety of that which remaines after debts payed for that only is to be accounted the testators which he hath ultraes alienum By a bequest of all utensils or household-stuff plate nor jewels are not given If one bequeath to his wife all her apparell she shall not have as some Civilians say her ornaments of gold or silver by which is meant as I take it chaines jewels bracelets rings c. but others are of contrary opinion except they be such things as are not lawfull for her to weare If a Bed be given by a will Venit ornamentum ejus saith the Civilian that is the furniture thereof passeth viz. not only the bed bedsteed bedcloaths but also the curtains and valents as I take it But I think that by gift of a Coach by will the Coach-horses passe not yet perhaps the furniture of the Coach-horses may passe as appertenant to the Coach for so I think they shall do rather then by bequest of the Coach horses without the Coach If one bequeath to A meat drink and clothing or alimenta he shall have saith the civill law also lodging habitation and all things necessary for the maintenance of life viz. as I take it fire and washing c. If one bequeath to his daughter ten pounds a yeare for her apparreling and she demandeth none in foure yeares now shall she not after that time have the arrerages of this ten pounds by yeare for the time passed If a man bequeath one of his horses or cowes not naming which to I. S. he is to chuse which he will so it be not the best of all saith the civill law and perhaps the mention of that exception growes out of respect to the hariot which the Lord should have or the mortuary which the Parson should have A man bequeathes thirty pieces of twenty shillings to A twenty to B and ten to C to be had in such a Chest or Casket and it is found after his death that there be but thirty in all in that casket or box now each shall be abated ratably saith my summist so as A shall have fifteen B ten and C five and this stands with good reason and justice for so each hath a proportionable part And it were reasonable that it were by Parliament established for law that all both legatees and creditors should be payed in like proportion where the state will not suffice for full payment of each rather then that an executor should have power to pay one all and another nothing yet if the testator left sufficient to make good all those sixty pieces bequeathed Quae. if that which is wanting in the casket shall not be supplyed and made up for if the cases following found with the same author be good law it should seeme so to be If one saith he bequeath to I. S. that which is another mans and whereto the testator hath no right then ought his executor to buy it and give it to the legatee or else satisfie him to the full value and this not only by the civill but also by the canon law and in foro conscientiae saith my author Againe if A bequeath to B such an horse by name and after sels away that horse and dyeth now is his executor bound to answer the value thereof to B and if the testator after his sale of that horse had bought another and called him by the same name as the first now shall this later horse passe to B saith the book except it can be proved that the testator sould the former horse of purpose to revoke his will touching that bequest So againe finde I that if one having but a moity or one halfe of Green close or of a stack of corne or other chattell doth give the whole so as the words be apparant to reach to more then his moiety then must the executor buy out the others part for the legatee or give him the value but if the words be but generall so as they may be reasonably satisfied with the testators part no supply shall be made So also if one having goods in pledge bequeath them it shall be construed to extend no further then his right A bequest is made of an hundred pounds to be payed at a future time viz. divers yeares after the testators death a question is made by the Summist whether the profit of the money in the meane time shall go to the legatee or the executor and he resolves with this difference if the day were given in favour of the legatee being an infant who could not safely receive it any sooner then he shall have the profit but if the respite of payment were in favour of the executor then shall the legatee have but the bare summe without any addition of meane profits If one bequeath all his terme or goods to his executor for payment of his debts or debts and legacies it is a void bequest because it is no more then the law would say if he had sayed nothing So if it be generally to performe his will If one seised in fee simple of land bequeath it to his executor to pay debts the executor hath no state of freehold for if he should then it must be either for life which might end by his quick death before debts payed or in fee-simple which would carry away the land for ever from the heire where perhaps a few years profits might suffice to satisfie the debts yea then by the death of the executor the land should discend to his heire and not go to his executor who would be executor of the first testator If one give or grant all his goods having leases for yeares as well as moveables the leases shall not passe as was held in the time of Ed. the 6. And so also was it admitted in Portmans case for the word bona comprehendeth only moveables by the better opinion there But the point in that case was pertinent to this place viz. a bequest in a will of all the testators goods and whether thereby a lease for yeares passeth or not was divers times debated but not resolved the Judges differing in opinion in that point but in
another point which made an end of the case all agreed Yet the better opinion was as I finde in my report that a lease would passe by such words in a will though not in a deed or grant by word otherwise made for that legacies are demandable in the Spirituall Court where bona catalla are taken for all one See also the state of Marlbr giving an action to the successor ad repetenda bona predecess Yet an eject custod hath been maintained thereupon so also upon the stat for executors de bonis asportatis in vita testator hath it beene resolved and where administration is granted it is only omnium bonorum without speaking of chattels yet hath the administrator interest in leases as well as moveables On the other side the stat de prerog reg mentioning only forfeiture de catallis is cleerely extended to moveables so also in the writ of assize de catallis quae in eo capta fuerint and in the writ of execution upon a stat there is only the word catalla and not bona and in the case reported by Kelway temp Henry the 7 th it seems bona catalla were taken for synonyma or all one It doth not appeare that these stat and writs were alleadged or considered of temp Ed. 6. but in Portmans case the most of them were If one will that his wife or any other shall have or hold or enjoy the moiety of his lease with his executor This implyeth not that the executor have the other moity as a legacy also but otherwise as the law casts it upon him no more then where the moiety of fee-simple land is devised to the younger sonne this shall not make the elder sonne to have the other moiety otherwise then by discent as betweene Low and Charter was conceived But there being a Proviso in the wives bequest that if she married from the house then c. Popham cap. Justice held that if she married at all this was a marrying from the house for she was no longer widdow of that house though she married with one of that kindred and who had no other house but would dwell in the bequeathed CAP. XX. Of the Executor of an Executor I Should bee taxed of omission if I should not shew whether the things fore-spoken of Executors immediate extend also to the mediate or more remote Executors Assuredly were I not by the books otherwise informed I should thinke it somewhat strange that the mediate Executor in the fourth fift or further degree should not by the rules of the common Law stand in like plight Executor to the first Testator as the first and immediate Executor aswellas the heire and assignee in the third or thirteenth degree is capable of all advantages in like sort as the first and immediate heire and assignee And indeed wee finde both in the time of Edward the 2. and Edward the 3. Execution sued out upon a judgement and Statute by an Executor of an Executor and why hee might not aswell maintaine an action of debt c. I see not But I must confesse I finde both books to the contrary before any Statute made in the point and after an act of parliament to enable them to bring actions and to make them subject to actions yet the Statute speakes nothing of conferring upon them the Testators goods Now if they had title to them before that Statute and without the helpe of that Statute it is strange if they should not bee suable for debts But since that Statute and at this day where by a will a speciall trust is recommended to an Executor as to sâ—ll land c. This not performed in his life time shall not be performable by his Executor contrariwise of an interest as to take the profits of lands for certaine yeeres towards payment of debts and legacies and where the stat temp H. 8. gives remedy to Executors for recovery of rents of inheritance behind in the Testators life I doubt not but executors of executors are within the equity as well as within the Stat. 9. Ed. 3. cap. 3. that the executor who appeares at the grand distres shall answer alone Yet the statute Westm 2. cap. 23. for executors was taken not to extend to executors of executors Quod non est lex So as now in all cases except of speciall trust or authority without the office of executorship The executor of an executor how farre soever in degree remote stands as to the points both of being having and doing in the same state and plight as the first and immediate executor CAP. XXI Touching Administrators OF these also as standing in much affinity with executors it may bee by some expected that I should have treated But first my excuse is that these of executors onely having growne to so great a bulke above expectation I was unwilling to inlarge it further Secondly that which in the points of having and doing is before set forth and shewed touching executors may bee applied to and understood of administrator sthough not what is spoken of being and unbeing or revocation of executorships and other circumstantiall points Lastly I may perhaps if these finde good acceptance ad ere long that which appertaineth to Administrators distinguished from Executors or wherein they stand in different state CAP. XXII Considerations in conscience touching payment of Debts Legacies and the preferring or respect of persons TO the advertisement what course executors are to hold in their payments I thought good to adde this in foro conscientiae That when as it shall stand in the executors will and election to pay whom he will and as he will in respect of equality in the dignity and degree of the debts all being for the purpose by specialty and none of record and yet he hath not wherewith to pay or satisfie all Here he may have three wayes or courses in his eye First where there is equality in the honesty and conscience of the debts there except in the ability of the paties to beare losse the disproportion may otherwise occasion me thinks it should be most honest and just to pay every one proportionably and to let the losse of every one to be equall and the justnesse of this is taught by the law which gives the audita querela for equall contribution in bearing of losse by them who stand in equall degree so of legacies The poverty and inability of some and the plenty of others may in foro conscientiae justifie the paying more to one and suffering him to lose lesse if any thing then another For as the widowes mite was a greater gift so a greater losse then more out of abundance Where charity findes or may finde place or neernesse to place of giving it may find greater motives of preserving from losse So of legacies The nature of the debts and so sometime of legacies may be so different as
29. Eli. Inter Brooker Carter in Ba. com 9. Ed. 4. 33. The Booke calls him Cardinall of Canterbury 9. Ed. 4. 47. Selling Land as Executor is Admin Dyeâ— in Case of Greisbrooke Foxe Plow com 280. b. Pas 7. Eliz 36. Hâ—n 6. f. 7. 8. Micâ— 27. 28. Eliz 〈◊〉 Case in com 〈…〉 A. being Executor did adminâ—ster and yet would not prove the Will B. tooke Administration and being sued for debt did pleade the matter supra and held a good plea and was found for him before â—ust 〈◊〉 ad Oxâ—n in aestat 1. Carâ—l reg 36. Hen. 6. 7. 20 〈◊〉 4 17. and 21. â— 4 5. 21. Ed. 4. 5. 21. H. 6. 19. 20. 33. H. 6. 31. 8. 1. Eliz. Dy. 166. 13. Ed. 3. Exâ—c 91. 3. 4. Ma. Dy. 135 26. H. 8. 7. 8. 20. H. 7. Kelw. 63. 21. Ed. 4. 5. 20. H 7 f. 5. a. 9. Ed. 4. 12. 13. 33. H. 6. 31. 4. Cooke lib 5. f. 2â— Cont. 18. E. 2. Bre. 8â—7 22. Ed. 3. 19. 15. Ed. 3. Exec. 8. 41. Ed. 3. fol. 〈◊〉 21. Ed. 4. fâ—l 24. 42. Eliz. Co. 9. f. 36 37. 4 5. 〈◊〉 Ma. Dy. â— 69◠〈…〉 2â— â— â— 4. 23. 24. 33. Hen 6. 38. a. 〈◊〉 9. 37. 6. 32. Hen. â— â—25 27. Hen. 8. 11. 〈◊〉 curâ—am 9. Ed. 4. 33. Co. 9. fol. 36. 2. R. 3. Fitzh 4. Co. lib. 9. fol. 43. 11. H. 7. 12. Flow. Coâ— 279. 1 Cor. 4. 2. Acts 20. 27. Vide â—ol proxim If Bona Notabâ—â—â— both in Canterb. and Yorke Canon 92 93. â—1 Eliz. Goods considerable or 〈…〉 Hil. 37. Eliz. M. Comâ— Da. Vide 13. 14. Eliz. Dy. 305. 22. Eliz. 9. Ed. 4. 47 22. Ed. 4. 50. 22. H. 6. 52. Plow Com. 282. 44. Ed. 3. 32. 19. Ass p. 2. Plow Com. 281. a. 283. 18. H. 6. 22. 2. 9. E. 4. 33. 47. Not to make good a Release made before Co. lib. 5. 28. 36. H. 6. 8. 2. Ma. Dy. 110. See also 31. E. 3. cap. 11. An Administr shall account as an Executor Fitzh Ex. 91. and 837. viz. 18. E. 2. tit Briefe 48. E. 3. 14. 15. Of a duty resting in account it is said the Legatee shall have remedy by account in the Spirit Court 81. Ed. 4. f. 3. Moyle 4. H. 7. 15. per Wood. 9. Ed. 4. 47. Dost Stu. 78. b 21. Ed 4. 22. Plow Com. 544. 4. H. 7. 15. Kelw. râ—p 64. a. Temp. E. 1. Assise 〈…〉 37. Ass p. 〈◊〉 4. E. 3. Ass 166. Brâ— Chaâ— 15. â—9 E. 3. 37. So Manwood if granted for life it is but a chattell Plow coâ— 524. 〈…〉 88. Reg. orig f. 102. There is mentione that the prisoner was to have a 190. l. for his ransome Bro. no. ca. 295. tis Property 38 1. H. 6. cap 5. 10. E. 4. 14. 15. Come of wilde ones 22. H. 7. Relw. rep f. 88. 118. co lib. 11. fo 50. 18. H. 8. 2. 10 E. 4. 14. 15. 18. E. 4. 8. So of young Hawkes in the nest It is felony to steale these Ergo. they be goods So an Hunters horne a Falkoners lewer Hares Deere Fesants Partridges wilde Duckes c. are good â—eate Fo. 142. Hen. 8. fol. 3. Rootes of Carrots Parsnips Land sold wherâ—n is ripe Corne For he was Tenant for life in effect The Wife also shall have convenient apparell 33. H. 6. 31. 2. Eliz. Dy. Co lib. 11. f 48. Of Houses or things about the House 42. E. 3. 6. â—1 H. 7. f. 26. 42. F. 3. f 6. H. 37. Fliz. Austins case 〈◊〉 lib. 4. f. 63. 64 Things in Gaâ—dens 〈…〉 2. 36. H. 6. 2â— 18. E. 3. 4. â— H. 7. 15. Quae. If sole use that way make a difference or not See Stat. 〈◊〉 H. 8. cap. 17. Remedy for Rents of Inheritance or for life A Church of the Testators Inher become voyd in his life comes to the Executor as a thing in action but is not Assets for not vendible 11. H. 4. 32. 45. E. 3. 3. 〈◊〉 na br 59. 4. E. â— c. 7. And the like given to Executors of Executors pâ—r 〈◊〉 25. E. 3. c. 5. 17. E. 3. Fit 106 cap. 21. meant 〈…〉 21. H. 6. 1. but 〈…〉 contra 21. H 8. cap 19. 4 E. 3. The B. of Coâ—â—nt â— and Safes case M. 32. 33 Eliz. in com ba. So of Ravishment Dl. gard 7. H. 4. â— 7. H. 4. 6. Erect 〈◊〉 Tild Do â—lauso fracto meerely it lyeth not 11. H. â— 3. This Tâ—riaÌ„ Iust did very judiciâ—â—â—sly urge in Sâ—les case supra At least me thinkes Action upon the case here and before should be maintaineable 3. H. 6. 3. Litleton fo 42. a. So held in Sales case of dammages in Qua. impe recovered conte of the presentment Releasing 13. Ed. 3. 〈◊〉 9â— Error 1â— H. 4. 65. 46. E. 23. Yet upon a verdict in Qua. imp the Wife not the Executor of Husband did seise 9. H. 6. c. 4. Or if a strange usurpe in his life and he dying his Executor recovers in a Qua. imp as by Sale was done infra Mich. 32. and 33. Eliz. So held in Sales Case in com ba. Vende◠〈◊〉 pâ—test emerat ipse prius 22. H. 8. 〈◊〉 Villenage 46. If he dye how shall this be Assets in the heire 3. H. 63. and so 2. Hen. 4. 21. If by Feoffment per Markam cap. Iâ—st contr Rickâ—ill See 9. El. Dy. 264 9. H. D. 264. 14. H. D. 31â— Note Diff. â—1 Hen. 7. Plowd Com. 11. H. 6 35. per Babington 24. E. 3. f. 35. 32. H. 6. 34. â—itl tit villenage 41. 42. 10. E. 4. fo 1. Yet 39 H. 6. f. 15 A release of all actions by an Executor extincts actions as Executor But Frowicke iâ— against it in 20. H. 7. Kâ—l 64. See these so resolved in Plow com 525. intâ— Râ—ansby Grantham P. 20. Eliz. This may be in his name onely out of whose possession the goods were taken Co. lib. 5. fo 32. 34. H. 6. 43. Co. lib. 9. 88. b. See this also Ploâ— com 520. a. 21. Hen. 6. 30. If other goods taken among them he is excused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded 43. E. 3. 24. Brâ— 145. Makes a quae if it be locked Plow com 280. 43 Ed 3. 2. 10. Ed. 4 5. 6. Of the Deed execution first 12. H. 4. 7. Hen. 4. f. 31. See Bro. Exe. â— 24 Co. l. 3. f. 90. 91. To like purpose see more Litl f. 77. b. 2. Eliz. Dy. 281. Plow com 291. 21. Hen. 7. 4. A Are as one person therefore cannot plead severall pleas 〈◊〉 abatement 3â— H. 6. 17. 9 H. 6. f. 44. 38. E. 3. 9 Bro. Ex. 13. Brâ— Ex. 20 21. Therefore one Executor sued iâ— he plead that there is another Executor not sued must plead that he did administer 9. H. 6. 44. Bro. 13. 33. H. 6. 38. â— â— 20. 32. E. 3. quid jur 〈◊〉 5. â—3 H. 4 Aid â—86 A 9. Ed 3. cap. 3. A B But not if he