Executor but as Legatee 3. Where there are divers Executors they are all but as one person and therefore cannot plead several pleas being sued all of them represent the Testators person and they must all joyn in Suits as Plaintiffs and be joyned as Defendants or at least so many of them as have Administred therefore one Executor sued if he plead that there is another Executor not sued must also plead that that other hath Administred Thus Executors though never so many represent the person of the Testator as one person Therefore all of them shall have but one Essoyn neither before appearance nor after because their Testator himself whose person they represent could have no more And therefore where Executors as Defendants have appeared if any one of them will confess the Action this binds and concludes the rest but if one will plead one Plea and the other another some are of Opinion that that shall be received which is best for the Testators Estate So where they Sue such as will not prosecute shall be severed and the rest without them may proceed It is evident by what hath been said That Two Joynt-Executors being Sued cannot plead two distinct Pleas because they both represent but one person viz. the Testator who could have but one only Plea Yet others say they shall have several pleas and the most peremptory shall be tryed And if any one of Joynt-Executors Plaintiffs dies the Writ abates though he so dying was for non-appearance on summons before severed and so it is if one of the Co-Executors Defendants dies Yea if a Creditor Sue A. B. C. as Executors where only A. and B. are Executors even there by the death of C. the Writ abates Also if a man make Three Executors whereof Two refuse the Administration yet they shall be Executors by the Will and may Administer when they please and an Action ought to be in all their Names otherwise the Writ shall abate CHAP. XVII Of the Executors Interest and Possession and how it differs from that which he hath in his own proper Goods 1. What may be said to be in the Executors Actual Possession or not 2. How the Executors Interest in the Testators Goods differs from that which he hath in his own 3. Whether an Executor may by Will bequeath the Goods he hath as Executor 4. Whether the Administrator of an Intestate Executor may intermeddle with the Goods of the first Testator 5. How Testators and Executors are Correlatives as to Chattels 1. IN Chattels Personal the Executor hath such an Actual Possession presently upon the Testators death though never so far distant from him and without any laying his hands actually on them as that he may maintain an Action of Trespass against any taking them away or spoiling them though he or any for him never came near them but Chattels Real as Leases for years are not in his possession till himself or some for him actually enter thereupon But a Lease for years of Tithes be the Executor never so far distant from them at the time of the Testators death shall be in his actual possession instantly upon the setting out thereof so as he may maintain an Action of Trespass against any that shall take the same so set out though he nor any for him did never actually lay their hands thereon But in Glebe Lands into which Entry may be made the Case may be otherwise Nor are Debts accounted to be in the Executors hands till recovered So likewise Arrears of Rents yea of Inheritance behind in the Testators life-time for Executors are qualified to receive them also 2. An Executors Interest as Executor is only in his Testators Right his Interest in his own Goods is absolute and proper therefore though the Lord of a Villain might take all the Villains own Goods yet he might not take the Goods he had as Executor And from hence some have been of Opinion that an Executor granting all his Goods these are excepted which he hath as Executor except the Executor according to the Lord Dyer who is the Grantor be named Executor in the Grant 3. Nor can the Executor by Will bequeath the Goods he hath as Executor without a precedent alteration of the property thereof and with a Reconveyance thereof back to himself again 4. An Executor dying Intestate his Administrator cannot meddle with those Goods the Intestate Executor had as Executor but thereof Administration must be granted As De Bonis non Administratis to the next of Kin of the Intestate Executors Testator For thè reason aforesaid the Goods which a man hath as Executor are not liable for the Executors debts and therefore cannot be taken in Execution for his own proper debts For the same reason also the Goods which a Woman hath as Executrix are not devested out of her into her Husband by marriage nor can he have them after her death without being his Wifes Executor Upon the same ground it is as was but now hinted that the Goods and Chattels of the first Testator in the hands of his Executors Executor no alteration of the property thereof being made by his Executor shall not be liable for satisfaction of the debts of his said Executor As thus suppose A. makes B. his Executor and dies B. makes C. his Executor and dies Now if B. made no alteration of the property of the Goods of A. but meerly left them to C. In this Case the Goods which so came to B. as Executor to A. and so from B. to C. shall not be liable in Law to pay the debts of B. the immediate Executor of A. 5. There is a further discovery of an Executors Interest as to Chattels Real wherein Testators and Executors are as Correlatives for if a man make a Lease for life to one the remainder to his Executors for twenty one years the term of years shall immediately vest in the Lessee for even as Ancestors and Heirs are Correlatives as to Inheritance so are Testators and Executors Correlatives as to Chattels And therefore if a Lease for life be made to the Testator the Remainder to his Executors for years the Chattel shall vest in the Lessee himself as well as if it had been limited to him and his Executors And thus a Remainder of years limited to the Executors of a Lessee shall presently vest in the person of the Lessee himself because Testators and Executors are Correlatives as to Chattels CHAP. XVIII Of the Executors Right in opposition to the Heirs in reference to Mortgages 1. How the Executor doth more represent the person of the Testator than the Heir doth the person of his Ancestor 2. The difference in point of payment whether to the Heir or to the Executor in Case of Mortgages 1. IF the Feoffee in Mortgage before the day of payment which should be made to him make his Executors and die and his Heir entereth into the Land as he
an Account against B. as Receiver of the monies of the said J. S. upon Ne unque Receiver pleaded It was found for the Plaintiff and Judgment given that he should Account and being in Custody upon a Capias ad Computandum he was found in Arrearages and his body taken in Execution Afterwards the Will was made void in the Ecclesiastical Court for that the said J. S. was an Ideot from his birth which being certified by Writ into the Chancery and thence by Mittimus into B. R. an Audita Querela was brought by B. setting forth all the said matter whereupon the Court demurr'd It was said by Cook That in 35 H. 8. It had been Adjudged That in that Case the Audita Querela did well Lie The Marquess of Winchester by his Will in writing as supposed Devised divers Mannors to his Reputed Sons Devising further that they should sell divers Mannors and also bequeathed Plate and other Legacies to them This Will was assayed to be Proved in the Prerogative Court but it appearing by circumstances the said Marquess to be Non compos mentis at the time when the supposed Will was made it was moved for a Prohibition in B. R. because a Will touching Lands and a Will concerning Goods were both mixt together and that in Case they should there proceed as to the Goods the same would prevent the Tryal in the Kings Bench where a Will for Land shall be Tryed for which Reason a Prohibition in that Case was generally awarded 2. In that Case it was resolved That a Testator at the making of his Will ought to be of a memory not only to answer to ordinary and familiar questions but also to have a disposing memory so as to be able to make a disposition of his Lands with Reason and Understanding and that That is such a memory which the Law calls Sanae Memoriae CHAP. IX Of Persons Intestable for want of Freedom or Liberty 1. Of Villaines 2. Of Captives 3. Of Prisoners 1. VIllaines are Intestable if their Lord by Entry and Seizing take and enjoy all their Lands and Goods otherwise their Wills are not void but by such Entry and Seizing before Probate they become voidable Except of such Goods whereof such Villains were Executors to others for of such Goods they may not only make their Wills but also maintain actions even against their Lords in case they should take from them such goods as they have by Executorship But of this there is little or no use with us now here in England as in former times 2. A Captive during the time of his Captivity cannot make a Testament yea though he afterwards make an escape yet the Testament made during the Captivity is void but if it were made before his Captivity then after his escape or enlargement it shall be as good in Law as if he had not been Captive at all Likewise he that is alive and in Captivity for the upholding of his Will which he made in his Liberty is feigned by a Legal fiction to be dead the hour before he became Captive so that if he dye in Captivity yet is his Testament so made before his Captivity allowed and his Executor shall have all his Goods as if he had died the day before his Captivity Likewise if any person be taken by a Pirate Turk Infidel or Christian with whom open War is not proclaimed he so taken remaineth a Freeman in construction of Law as to Testability notwithstanding such Capture and therefore his Testament made during such restraint shall be good 3. Persons condemn'd to perpetual Imprisonment cannot make a Testament But a person imprisoned only for debt or the like is not thereby disabled to make his Testament or is his Testament void except it be made in the favour of him at whose Suit the Testator is imprisoned on purpose to extort the same from him CHAP. X. Of Women Covert 1. Women Covert Intestable as to Lands 2. They are Intestable as to Goods without the Husbands License 3. They are Testable as to Chattels by Executrixship 4. They are Testable as to things meerly in action whereof they were not possessed during Coverture 5. Whether they may accept Executrixship without their Husbands consent or the Husband Administer in case of their refusal thereof 6. Cases in the Law concerning this Subject 1. THat Women Covert are Intestable for want of Freedome is not such a general Rule in Law as to exclude all exceptions It is true a married woman cannot make her Testament of any Lands Tenements or Hereditaments specially she cannot devise the same to her Husband though she were not thereto constrain'd by him but would do it of her own accord freely and voluntarily and though such Testament were made before her Marriage with such Legatary-husband And albeit the Wife survive the Husband yet the Testament made during Coverture is not good But yet if after her Husbands death she approve and confirm such Testament made under Coverture then this new Consent or new Declaration of her Will makes the Devise good Also if the Testament were made before Marriage and she out-live her Husband it shall be good Also where power of selling the Testators Land is given to a Wife-Executrix there she may sell even to her own Husband or to whom she please 2. Of Goods and Chattels the Wife cannot make her Testament without her Husbands License for all the Goods and Chattels which the Wife had at the time of marriage and all the Chattels real if he survive the Wife belong unto the Husband by vertue of the said marriage Yet by the Husbands License she may make her Testament even of his Goods yea though the Husband understand not of his Wifes Will yet if after Probate thereof made by the Executors he deliver them the Goods therein Devised he thereby ratifies the Testament though he were not privy to the making thereof for the Goods being once delivered by him according to the tenour of the Will it is then too late for him to revoke the same Otherwise notwithstanding his License given her to make a Will of his Goods he may revoke the same at any time before the Probate thereof Or otherwise having made her Will by her Husbands License he may chuse whether he will suffer it to be Proved for his Consent is necessary as well to the Approbation as to the first making thereof And this extends also to the Goods which she had in her own right before marriage for thereby immediately all Chattels personal and Goods moveable are so devested out of her into her Husband that although she survive him yet they return not to her again but go to her Husbands Executor or Administrator 3. Touching Goods which she hath as Executrix to another the Case is otherwise for such do whether she or her Husband
Words implying an Executor equivalent to the word Executor 3. Instances of an Executorship without naming the word Executor 4. Small Errours in a Will no prejudice to the Will 1. THe bare naming of an Executor in the name of a Will without giving any Legacy or appointing any thing to be done by an Executor is sufficient to make it a Will and as a Will it is to be Proved for the naming of Executors is by Implication a gift or Donation to them of all the Goods Chattels Credits and personal estate of the Testator and the laying upon them an obligation of satisfying the Testators debts to the just value of the said Goods and Chattels 2. Although no Executor by the word Executor be expresly in the Will nominated or appointed yet if any other words or circumlocutions equivalent to the Function of an Executor or to the charge and office which in any part pertains to an Executor be recommended or committed to any one or more it shall amount to as much as the Ordaining or Constituting of him or them Executors by the very word Executor For the Law in the interpretation of Wills and Testaments regardeth not so much the words as the meaning of the Testator Besides it is not alwayes necessary to express the word Executor in the making of an Executor nor indeed hath every Testator skill enough so to do or to think it necessary Wherefore it is sufficient if the Testators meaning doth appear by other words of the like sence Hence then it is evident that such words as do imply the office of an Executor are as valid as the word Executor it self so that if the Testator declare by his Will that A. B. shall have his Goods after his death to pay his debts or otherwise to dispose thereof at his pleasure or to that effect he shall be his Executor Insomuch that he that doth commit all his Goods to the disposition of another doth not die Intestate yea if only Administration be by that word in a Will granted to one Executorship doth thereby pass And unto whom the Testator doth leave the residue of his Goods none else as aforesaid being appointed Executor to him the whole Executorship doth pass by that general Legacy at least the Administration as aforesaid is to be granted to such a general Legatary the reason being because the ignorant and vulgar sort know not for the most part how better to express their meaning of an Executor or the function thereof 3. If the Testator saith I commit all my Goods to the Administration or to the disposition of A. B. in this case he is made Executor it being in effect as if he had said I make him my Executor Or if he saith I will that A. B. shall dispose of my Goods which be in his custody he is thereby made Executor of those parcells of Goods or if the Testator saith I commit all my Goods to the hands and disposition of A. B. In this Case also he is made Executor of all his Goods So also if he saith I make A. B. Lord of all my Goods or I leave all my Goods to A. B. or thus I make A. B. Legatary of all my Goods or I leave the residue of all my Goods to A. B. or if the Testator saith I will that A. B. be my Executor if C. D. will not in this Case C. D. is appointed to be Executor and may if he please be admitted to the Executorship and exclude A. B. Or if the Testator supposing his Child his Brother or his Kinsman to be dead doth say in his Will viz. Forasmuch as my Child my Brother c. is dead I make A. B. my Executor In this Case if the person whom the Testator thought dead be alive he shall be Executor Or if the Testator being demanded by another whether he doth make A. B. his Executor doth answer Yea I do or What else or Why not or Whom else should I make Executor or I cannot deny it or other words to that purpose cum animo Testandi this shall be a pure and simple assignation of A. B. to be Executor Also if the Testator doth make A. B. or C. D. his Executors in this Case both of them shall be his Executors because as aforesaid or is here taken for and Provided alwayes in all the Cases aforesaid and in every other the like Case that the Testator have a firm and constant purpose and meaning to make his Will whensoever he uttereth any such words And as it matters not by what significant words the Executor is appointed So it is not material in what part of the Will or Testament he is appointed as whether in the beginning or in the middest or in the end thereof So as that he be therein expressed or sufficiently implyed as aforesaid 4. False English or words mis-spelt in a Will or other common mistakes shall not prejudice the Will or disposition or Executorship if it may evidently appear what or whom the Testator meant and that at the same time he was not non sanae memoriae yea though the Will want the words of conclusion viz. In witness whereof c. It is good in case it may otherwise appear to be the Testators Last Will and Testament CHAP. VI. Of persons incapable of being Executors or Administrators A Postates Traytors Felons persons Out-lawed Incestuous Bastards Famous Libellers manifest Usurers Sodomites uncertain persons and Recusants Convict are all excluded from being Executors yet each of these hath his respective qualifications And all these are incapable both of Executorship and Legacies if they be such either at the time of making the Testament or at the time of the Testators death or when they assume the Executorship Yet Incestuous and Adulterous Bastards are incapable of being Executors only to or receiving Legacies only from their own Natural Parents necessary means of sustentation only excepted But as to other Legataries it is sufficient if they are capable only at the time of the Testators death And the foresaid Rule relating to Incestuous Illegitimates is attended with more ampliations and restrictions in the Law than to insert here is adequate to the design of this summary Collection Add to these persons Excommunicated who so long as they lie under the sentence of Excommunication are not to be admitted either to Executorship or to Legacie nor during such time can such commence any suit for Legacies they cannot sue that is proceed in suit as Executors till they be absolved for this works not a nullity of the Executorship nor overthrows the suit but stays it only from proceeding untill absolution be had and obtained Yet a person Out-lawed as is reported also a person attainted may be an Executor where it is also said that an Alien may
Province such Bona Notabilia are Or unless by Custome it appertains to the Major of some Borough for ordinarily and regularly though Wills and Testaments are to be Proved before the Judge of that Jurisdiction within which the Testator died or rather within which he had his usual habitation and made his last aboad yet some Testaments may be Proved in some Boroughs before the Major thereof by Custome where it shall be understood to be only in respect of the Burgages within such places deviseable but in respect of their Goods they shall be Proved according to the Law Communi Formā and there only where the Lands are bequeathed which is nothing strange when as aforesaid in some Mannors by Prescription Testaments may be Proved before the Stewards thereof yea though no Lands be bequeathed therein The Probate of Testaments did belong to Ordinaries but of later Times de Consuetudine Angliae non de Communi Jure and the power to grant Administration was granted to the Ordinary by the Stat. of 31 Ed. 3. cap. 11. And before that time the King was accustomed to seize the Goods of the Intestate to the intent they might be bestowed for the burial of the dead and the payment of the Intestates Debts and the advancement of his Wife and Children and the Ordinary himself hath not power to sell the Goods of the Intestate though they be in danger of perishing nor release a Debt due to the Intestate by the Stat. of 31 Ed. 3. The Commissary of the Bishop of the Diocess granted Letters ad colligendum ad vendendum ea quae peritura essent inde computum reddere the Grantee sold Goods which would not keep but perished and an action of Debt was brought against him as Executor in his own wrong and it was adjudged maintainable because the Ordinary himself had not such power and therefore he could not give it to another 7 Eliz. Dyer 256. Again the practice hath been when Testaments have been Proved before other than such as are mentioned in the Premises as appears by this Case A Testament is disproved in the Ecclesiastical Court and the party appeals to the Metropolitan and it is there disproved and afterwards there is an Appeal to the Court of Delegates and it is there disproved also and at last the party appealed to the Queen in Chancery by the Stat. 25 H. 8. and there also it was disproved before the Commissioners And if the Queen ex Authoritate sua Regali might grant Letters of Administration was the Question The Opinion of the Justices of the Common Pleas was That she might because the said Court of Chancery is the Highest Court and the matter being once there it cannot be determined in any Inferiour Court and then the party may shew in his Declaration generally the matter and that Administration was granted to him by the Queen Ex sua Regali Authoritate under the Seal of the Court of Delegates Mich. 24 Eliz. in C. B. See after 10 Jae in B. R. Stephenson's Contrary That the Court of Delegates cannot grant Letters of Administration A Lessee for years of Lands by his Last Will Devised his Term to one whom he made his Executor and died the Devisee entered before any Probate of the Will and held the Land for a year and more without any Probate and then died The Question was whether his Executor or Administrator should have the Term or that the Ordinary should commit Administration of the Goods of the first Testator It was the Opinion of the Court That the property of the Term was lawfully in the Executor by his Entry and the Devise well executed without any Probate In Debt against Executors it was Resolved That if any of the Exccutors refuse before the Ordinary yet he that refused may Administer the Testators Goods at his pleasure and Prove the Will but if all the Exccutors do refuse before the Ordinary there Administration shall be granted and they cannot after Administer 2. That in Debt brought against an Executor it is a good Plea That the Testator made him and another Executor who is alive not named without saying that the Testament is Proved 3. Resolved That the Lords of Mannors in former times had the Probate of Wills in their Courts and in ancient time when a man died Intestate and had made no disposition of his Goods the trust of them was committed to the King who was and is Parens Patriae And the Ordinary was Constituted by the King in loco Parentis and his Power was given to him by the Stat. of 31 E. 3. cap. 11. 4. Resolved that although the Ordinary had the Power given to him as before yet no Power thereby is given to the Ordinary to sell or dispose of the Goods either to his own use or to the use of any other and that he hath not any absolute property in the Goods but a property only secundum quid 2. The Testament is to be Proved by the Executor whom the competent Judge either ex Officio or at the instance of the interessed may call before him to Prove the same and to declare his acceptance or refusal of the Execution thereof yea some think it may be done at the instance of such as have no interest to the intent that thereby they may be certified whether the Testator left them a Legacy And because it often happens that a Last Will or Testament is left in the Custody of some other Friend than the Executor the Law hath provided that in whose hands soever it remains he is compellable to produce the same and to exhibite such Testament And if he once had it the Law presumes him to have it still untill he prove the contrary by good evidence or by his own oath at least Also an Executor dying before he hath Proved his Testators Will his Executor that is the Executors Executor may not Prove both the Wills and so become Executor to both the Testators but in case the Goods of the first Testator were after Debts paid bequeathed to the first Executor then may his Executor take Administration of the first Testators Goods with the Will annexed 3. The time when the Will is to be Proved is somewhat uncertain and left to the discretion of the Judge according to the distance of the place the weight of the Will the quality of the Executors the absence of the Witnesses the importunity of Creditors and Legataries and other circumstances incident hereunto Yet regularly Testaments ought to be insinuated to the Official or Commissary of the Bishop of the Diocess within four months next after the Testators death And the Ordinary may sequester the Goods of the deceased untill the Executors have Proved the Testament so may the Metropolitan if the Goods be in divers Diocesses Also the Ordinary may compell the Executor to Prove the Will and to accept or refuse
Executor and not to his Heir So if any such thing be granted to one and his Successors his Executors shall have it And if the Heir or Successor get the Deed the Executor may Recover it from them If one hath a Box or Chest or Trunk full of Writings at his death and the same is open not sealed or locked this shall go as Goods to his Executor but if it were sealed or locked as incident to the writings it would be the Heirs whose the Writings be If a man hath a Term and Deviseth the same to one and the Heirs of his body his Heir shall not have it but it shall go to his Executors because a Term which is but a Chattel cannot be Entayled vid. 28 Eliz. Peacocks Case and 21 Eliz. Higgins and Mills Case Adjudged acc In like manner if a Devise be made of Land to one and the Heirs of his body for Five hundred years it is a Release for years and his Executors shall have it For an Executor shall have all Leases for years and although the Heir and not the Executor shall have the writings which concern the Inheritance yet the Executor and not the Heir shall have the Chest wherein such writings are if the Chest were not lock'd but if lock'd then the Heir shall also have the Chest as aforesaid CHAP. XIV Of the Heirs Rights exclusively to the Executors 1. Of things Personal that go to the Heir not to the Executor 2. Of things Real that belong to the Heir not to the Executor 3. A Law Case touching the same 1. TO the Heir not to the Executor do belong Fishes in a Pond Conies in a Warren Deer in a Park and Pidgeons in a Dove-house where the Testator had the Inheritance in the Pond Warren Park or Dove-house for such are not Chattels at all in that case nor to go to the Executor but to the Heir together with the inheritance Also Grass growing for Hay and Trees growing or standing except as in the last precedent Chapter and the Fruit thereon go to the Heir not the Executor Also Glass whether by nails or otherwise affixed to the windows either by the Lord or the Lessee descends not to the Executor but to the Heir as being made parcel of the Freehold or Inheritance of the house But if there be Glass from the windows or Wainscot loose or doors more than are used that are not hanging they shall then go to the Executor As to the Heirs Rights the Law is the same as to Wainscot if affixed or fastned to the house yet by the Civil Law such things as are in the house more for Ornament than Structure pertain not to the house Nor is it material whether the Wainscot be fastned by great or little nayles by skrews or irons thrust through or by other wayes or means for it sufficeth to make it parcel of the Freehold and consequently to go to the Heir not to the Executor if it be any way affixed or fastned to any part of the house The Law is also the same concerning all things fastned to the Freehold or to the ground by morter or stone as Tables Dormant Leads Mangers Milstones Anvils Doors Keys Glass-windows and the like for none of these be Chattels but parcels of the Freehold and therefore belong to the Heir not to the Executor Also Writings and Evidences that concern the Inheritance do pertain to the Heir also the Boxes and Chests wherein the Writings and Evidences of Inheritance are kept and usually have ever been imploy'd only for that Service shall go to the Heir not to the Executor whether sealed or not sealed lock'd or not lock'd Also in some Cases Corn in the ground shall go to the Heir not to the Executor for if a Lessee for years Certain sow the Land a little before the end of his Term and the Term end before it be cut in this Case he that is to have the Land not the Executor of the Lessee for years shall have the Corn. And if one be seized of Land in Fee and thereof make a Lease for years paying Rent at Michaelmas or within ten dayes next after and the Lessor happen to die within the term after Michaelmas and before the ten dayes expired in this Case the Heir of the Lessor and not his Executor shall have the last half years Rent due at Michaelmas Lastly Things under ground whether in Gardens or elsewhere as Carrets Parships Turneps Skerrets and other such like things under ground shall go to the Heir not to the Executor 2. Where a Rent is reserved upon a Lease for years there it shall not go to the Executor but to the Heir with the Reversion other than the Arrerages of such Rent as were behind at the time of the Testators death for such belong to the Executor not to the Heir If A. mortgage the Inheritance of Land to B. upon Condition of Redemption by payment of one hundred pound to B. his Heir or Executor and B. dies the Deeds being delivered into his hands In this Case the Heir not the Executor shall have the Deeds for though the money may be paid to the Executor yet in the mean time the Land descends to the Heir nor is there any debt to the Executor because it is in the Election of A. whether he will pay or not But if on the other side the Land had been sold for one hundred pound not paid to A. but a Condition that if not paid to him his Heir or Executor by such a day then to Re-enter and A. dieth In this Case there is a debt to his Executor and no Land descended to the Heir of A. yet shall the Heir have the Deeds because there is a Condition descended to him But if a Feoffee in Mortgage before the day of payment which should be made to him make his Executors and die and his Heir entereth into the Land as he ought In this Case the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee Unless the Condition were that the Feoffor pay to the Feoffee or to his Heirs such a summ of money at such a day then it ought to be paid to the Heir Also where the Testator recovereth Land and Dammages or a Deed and Dammages and dies before Execution the Heir shall have Execution for the Land or Deed and the Executor for the Dammages but until the Heir sue a Scire Facias the Executor cannot sue Execution for the Dammages for Execution must be first of the Deed then of the Dammages Also if Executors keep in their own hands for the space of one two or three years Lands devised by Will to be sold for any purpose converting in the mean time the profits thereof to their own proper use the Heir of the Testator may enter to the Lands and put
ought in this Case the Feoffor ought to pay the money at the day appointed to the Executors and not to the Heir of the Feoffee unless the condition were that the Feoffor pay to the Feoffee or to his Heirs such a summ of money at such a day Here note That the Executors do more represent the person of the Testator than the Heir doth the person of the Ancestor for though the Executor be not named yet the Law appoints him to receive the money but not so the Heir unless he be named Here also note That if the Condition upon the Mortgage be to pay the Mortgagee or his Heirs the money and before the day of payment the Mortgagee dieth the Feoffor cannot in this Case pay the money to the Executors of the Mortgagee But if the Condition be to pay the money to the Feoffee his Heirs or Executors then the Feoffor hath election to pay it either to the Heir or Executors 2. If a man make a Feoffment in Fee upon Condition that the Feoffee shall pay to the Feoffor his Heirs or Assigns Twenty pound at such a day and before the day the Feoffor makes his Executors and dieth the Feoffee may as aforesaid pay the same either to the Heir or to the Executors for they are the Feoffors Assigns to this intent But if a man make a Feoffment in Fee upon Condition that if the Feoffor pay to the Feoffee his Heirs or Assigns Twenty pounds before such a Feast and before the Feast the Feoffee maketh his Executors and dieth the Feoffor ought to pay the money to the Heir and not to the Executors for the Executors in this Case are no Assigns in Law And the reason of this difference is for that in the first Case the Law must of necessity find out Assigns because there cannot be any Assignes in Deed for the Feoffor hath but a bare Condition and no Estate in the Land which he can assign over but in the other Case the Feoffee hath an Estate in the Land which he may Assign over And where there may be Assignes in Deed the Law shall never seek out or appoint Assignes in Law CHAP. XIX Touching the Executors Election to accept or refuse the Executorship 1. Of the Judges Power to affix the time for that Election or in Case of the Executors refusal what his Power is 2. In what Case a person may be compell'd to accept the Executorship notwithstanding his Judicial refusal 3. How one appointed Executor by the Will may Administer notwithstanding his refusal to Prove the same 1. HE that is appointed Executor in a Will may be summoned to appear before the Judge of the Jurisdiction to accept or refuse the Executorship The time wherein he that is named Executor in the Testament is to deliberate and determine whether he will accept or refuse the Executorship is uncertain and left to the discretion of the Judge who hath used at his pleasure and when he will not only within the year but within a moneth or two to Cite him that is named Executor to accept or refuse the Executorship and upon the non-appearance or refusal of such Executor to Prove the Will the Judge may commit Administration as of an Intestate And such Administrators Power is effectual in Law untill the Executor undertake the Executorship For then the Judge may revoke such Administration But if the Judge knowing that there is a Will grant Administration not having first called the Executor to accept or refuse the Executorship the Executor when he shall have Proved the Will may Sue such Administrator in an Action of Thespass Because the Judge hath no power to grant Administration but in Case of Intestation or that the persons named Executors either will not or cannot be Executors 2. No man can be compell'd to accept the Executorship unless he hath already intermedled with the Testators Goods as Executor for then it is too late for him to refuse Yet if any Legacy be given him in the Will wherein he is named Executor he may then be compelled to accept the Executorship or he shall lose his Legacy Yea though he were of Kin or Allied to the Testator Yet the Wife shall not lose her Thirds nor the Children their Filial Portions by refusing the Executorship 3. Although where an Executor hath Administred he cannot afterward refuse because he hath thereby determined his Election and although where there is an Executor and he refuse or many and all refuse the party is dead as Intestate and Administration is to be committed with the Will annexed yet in case there be divers Executors viz. A. B. C. and A. only refuse and the Will be Proved by the other Two there A. continueth an Executor notwithstanding his refusal so as he may still release debts of the Testator and debts owing by the Testator may be released to him Yea if Sute be to be had by or against the Executors it shall not be in the Names of B. and C. only but A. also must be Named as a Plaintiff or Defendant or else the Action may be overthrown Yea this Executor which refused may afterwards Administer at his pleasure and intermeddle with the Goods as well as the others but after their death he cannot so do for then the Executor of him that Proved the Will is only to Administer and the others refusal continuing to the death of his Co-Executor his Power then died also with him but so long as the one Co-Executor liveth that Proved the Will the other though he refused the Executorship before the Judge may yet afterwards so long as the other lives Administer the Goods or Remit the Debts due to the Testator And that co-Co-Executor that so Proved the Will cannot hinder him nor can he Recover against the persons by him so released Trespass It was found by Verdict That Sir Ralph Rowlet being possess'd of a Term made his Last Will and thereof made the Lord Keeper Bacon Catlin Chief Justice and others his Executors and Devised the Term to the Lord Catlin and died All the Executors wrote a Letter to Dr. Dale Judge of the Prerogative Court That they could not intend the Execution of the Will and desired him to commit the Administration to Henry Goodyer the next Kin of the Testator The Administration was accordingly granted but the Register Entered the Cause viz. For that the Executors did defer suscipere onus Testamenti After this Catlin Entered upon the Land Devised to him and granted it over the doubt was whether this Grant were good 1. Whether the Letter were a sufficient Renunciation 2. Whether if they once refuse they may after Administration granted Administer at their pleasure Dr. Ford declared to the Justices That by the Civil Law a Renouncing may be as well by matter in Fact as by a Judicial Act and they may refuse
thousand five hundred pound upon a special Verdict the Case was That W. M. had received annually out of the Exchequer Fifty pound as a Fee for his Diet for Thirty years together which was paid him by the Command of the Lord Treasurer who had Authority by Privy Seal to make allowance and payment of all Fees due but in truth these were not any due Fees And whether his Executor shall be charged with these Summs so received was the Question And after Argument it was adjudged that he should be charged for it was held That this payment of the money by the appointment of the Lord Treasurer was not allowable for the Privy Seal is not sufficient Authority to dispose of the Queens Treasure unless where it is due and he disposing of it otherwise it is out of his Authority 2. It was held That this money delivered by Authority of the Lord Treasurer who is quasi a Judicial Officer and it was quasi a Judicial Act by him yet it shall not bind the Queen for it was without his Authority and without warrant to make allowance thereof not being due and it is at his peril who receives it or demands allowance thereof For these and other Reasons mentioned in the Report it was adjudged for the Queen against the Defendant and although he were Executor he should answer for it as a debt from the Testator 11 Co. 90. b. Errour upon a Judgement given in an Assumpsit against an Executor upon a Promise of the Testators where the Plaintiff declared That the Testator in consideration of Marriage promised to pay the Plaintiff One hundred pound and for non-performance of this promise brought the Action and Judgement there given for the Plaintiff and this matter was assigned for Errour that the Action lay not against an Executor and all the Justices and Barons besides Clark Baron held it to be Erroneous for this cause For Anderson said The Reason why Debt lies not against an Executor upon a Contract of the Testators is because the Law doth not intend that he is privy thereto or can have notice thereof and he cannot gage his Law for such a debt as the Testator might and when debt will not lie it is not fit that this Action upon a bare Promise should bind him for it stands upon one Reason And if these Actions should be allowable it would be very mischievous wherefore the Judgement was reversed Q. Whether a Recovery in this Action against an Executor is allowable against a debt upon an Obligation if it should be an Administration for then it would be mischievous to Creditors and if it should not be an Administration it would then be mischievous to Executors that they should be charged therein and not have allowance thereof against other Creditors for it may be that at the time of the Recovery they did not know of other debts Note that this Term was given the like Judgement betwixt Griggs and Helhouse in an Action brought against an Administrator upon a Promise of the Intestates to pay money c. Debt against the Defendant as Administratrix of J. S. upon plene Administravit pleaded it was found by Verdict That the Testator at the time of his death had Goods to the value of One hundred pound and was bound to another by Obligation in One hundred pound and that the Defendant had taken in this Obligation and made another in her own Name with Sureties to the Obligor And upon the motion of Heale the Court held That this was an Administration and it is in the nature of a payment and so much of the Testators debt is thereby discharged and so it was said to be adjudged in Woods Case Nota fuit Ruled accordingly Pasch 30. in C. B. which was entered Mich. 28 29 Eliz. inter Stamp Hutchins Action upon the Case on Indebitatus Assumpsit doth well lye for every debt implyes a Promise and it is one good consideration in Facto whereon to found an Action But for a debt by simple Contract due by the Testator no Assumpsit lies against Executors and it was openly delivered by Popham Chief Justice No. 44 Eliz. to be the Resolution of all the Judges and to be a President in all Cases that might after happen It was agreed by Yelverton Williams and Crook Justices That if a man by Indenture lease Land to J. D. for years rendring Rent and J. D. dye making A. his Executor the Lessor may have Action of Debt against the Executor for the Rent reserved and the Arrears thereof after the death of the Lessee albeit the Executor never enter nor agree to the Lease for the Executor represents the Testators person and the Testator by the Indenture was stop'd and concluded to pay the Rent during the Term upon his own Contract and albeit the Rent exceeded the value of the profit of the Land yet the Executor cannot waive the Land but notwithstanding that shall be charg'd with the Rent Vid. Opin Ascue 21 H. 6. 24. 11 H. 4 Contr. Action Sur Trover and Conversion of Goods upon demurrer the Case was The Ordinary committed Administration of the Goods of an Intestate to the Defendant afterwards the next of Kin sues out a Citation in the Ecclesiastical Court against the Defendant to Repeal that Administration and he pendente Lite sells those Goods and afterwards his Administration is Repealed and Administration committed to the Plaintiff who for this Conversion pendente Lite brings this Action and it was moved for the Defendant that this Action lyes not for the Administration at the Common Law is well committed and the Statute doth not alter the Law in this point but gives a penalty against the Ordinary if he commits them not to the next of Kin and the Administrator till Administration Repealed hath an absolute Authority to dispose of the Goods as he pleaseth Tanfield è contra The Conversion pendente Lite in the Ecclesiastical Court is not lawful but is a Tort to the Plaintiff and that the Sentence there proves which is that all things attempted or done pendente Lite shall be void and the Justices ought to have regard to the Civil Law in this point as in 27 H. 6. Guard 118. 2 R. 2. Quare impedit 143. and 4 H. 7. 13. And by the Sentence it appears that the Administration is revoked as if it never had been and upon this reason it is in Dyer 339. where an Administrator recovered a debt and afterwards another procured himself to be joyned in the Administration and released the debt and afterwards it being revoked this release was not any bar to the execution And Mich. 25 26 Eliz. in the Common Bench between White and Cary this very point was in question and adjudged that the Action lay Gawdy The Action well lies for the Sentence doth not repeal mean Acts done by an Administrator which are for the Intestates benefit but forasmuch as these Goods were not converted
or Legatee but as Executrix by reason of these words viz. for the payment of his debts and for the wealth of his Soul And the Justices held That all works of Charity were within the Intent CHAP. XXVI Of a Devastavit or Wast in an Executor or Administrator 1. What a Devastavit or Wast is and in what Case the Writ of Devastaverunt doth lye 2. How many wayes a Devastavit or Wast may be committed 3. An Executor or Administrator in a Devastavit or Wast is chargeable de bonis Propriis 4. What Acts do not amount to a Wast also a Wast committed by one Co-Executor shall not charge another 5. The manner of Proceedings against Executors or Administrators in case of a Devastavit 1. A Devastavit or Wast in the Executor or Administrator is when he doth mis-administer the Goods and Chattels of the deceased or mis-manage that Trust which is reposed in him either by the Testator as to the Executor or by the Law as to the Administrator and therefore the Writ of Devastaverunt bona Testatoris lyeth against Executors for paying Legacies or Debts without Specialties to the prejudice of Creditors that have Specialties before the debts upon the said Specialties be due For in this Case the Executors are as lyable to an Action as if they had wasted the Goods of the Testator riotously or without cause Likewise the said Writ lyeth against Executors or Administrators when they deliver the Legacies given by the Testator or make Restitution for wrongs done by him or pay his debts due upon Contracts or other debts upon Specialties whose dayes of payment are not yet come c. and keep not sufficient in their hands to discharge those Debts upon Record or Specialties which they are compellable formerly by Law to satisfie or do deviate from that method or order enjoyned Executors by the Law in the payment of Debts and Legacies In such Cases they shall be constrained to pay of their own Goods those Duties which at the first by the Law they were compellable to pay according to the value of that which they delivered or paid by compulsion for such payment of Debts or delivery of Legacies as is aforesaid before Debts upon Record or Specialties whose dayes of payment are already come are accounted in the Law a wasting of the Goods of the deceased as much as if they had given them away without cause or sold them and converted them to their own use 2. From the Premises it is evident that a Devastavit or Wast may be committed several wayes more particularly thus viz. When more is expended about the Funerals of the deceased with respect had to his Estate and degree than is meet and fit when Executors pay Legacies in money or assent to Legacies given in other things before the Debts are paid not reserving sufficient to pay the Debts also when the Debts are not paid in that order and manner as the Law requires but payment is made of that first which should be paid last when there is not sufficient to pay all when the Executor gives a Release of a Debt or Duty due to the deceased before his Receit thereof when he Releases an Action whereby he might recover the deceaseds Goods or the value thereof when he sells the deceaseds Goods much under value specially if in a fraudulent way as to his near friends to his own use or to have money under hand or the like But be the appreyzment what it will and let the Testator sell for what he will he shall stand chargeable to the best and utmost value towards the Creditors but a Sheriffs sale of the Testators Goods upon an Execution at an under-value is no wast in the Executor If an Executor upon a Bond of Two hundred pound forfeited for non-payment of One hundred pound accept the Principal or Cost or Dammage and give a Release or Acquittance of the whole forfeited Bond or of all Actions or upon Record acknowledge satisfaction upon Judgement had this shall be a Devastavit or Wasting of so much as the penal summ is more than is received by him and so far his own Goods stand lyable to Creditors not satisfied And so doubtless is it if he do but give up the Bond having no Judgement upon it though he neither make a Release nor acknowledge satisfaction The Law is the same in Case of releasing of Trespasses or other causes of Action As if one take away Goods from the Testator or his Executor and he give a Release this is a Wast and makes his own Goods lyable Yet on the other side if an Executor by payment of Two hundred and forty pound or thereabouts get in a forfeited Bond of Five hundred pound it shall be an Administration but of Two hundred and forty pound or of no more than he really paid Also the Executors verbal agreement to require or sue for no more or his giving a Receit for so much as he hath received or delivering of the Bond into a Friends hands or into a Court of Equity by way of Security to the Debtor that he shall not be sued for more is no Devastation or Wast since that the rest in Law still remains as due and suable And upon the Issue of Plenè Administravit the Jury is to find whether the Executor hath Assets or not and not whether a Devastation for that must come in by the Sheriffs Return upon the Fieri Facias Again the Executors submitting to Arbitrement matters of Debt or Duty due to the Testator or touching his Goods taken away is another way of discharging dangerous to Executors for if it happen that by the Arbitrators Award the Trespassers or Debtors be discharged without full Recompence made the rest of the value will subject the Executors to the Creditors because it was their own voluntary act to submit to Arbitrators Or if an Executor allow a Writ to suffer Judgement to be had against him upon a Writ which is abatable he shall not have allowance of that but this shall be Return'd as a Devastavit Yea if money be paid by an Executor upon an usurious Contract it is a Devastavit And it was held by the Lord Hobard That if an Executor pay a Bond made upon an usurious Contract it shall be a Devastavit or Wast in the Executor 3. These and the like Acts are said to be a Devastavit or Wast in the Executor or Administrator which being discovered against him by the Sheriffs Return will charge him de bonis Propriis for so much as he hath so mis-administred insomuch that any Creditor may charge him for the Debt due to him from the Testator as for his own proper Debt and for so much Execution shall be made against him upon his own Body Lands and Goods Yea the Husband shall be charged in a Devastavit for the Wast of himself or his Wife where she is an Executrix whilst
all Devisable and Two parts of Three though held in Knight-service But then the Will must be in Scriptis not Nuncupative Now though Land be thus Deviseable partly by Custom partly by Statute yet there are certain persons incapable of Devising Lands and there are certain Lands incapable of being Devised as appears by what follows in this Chapter 2. As Lands are now Devisable so there are certain Things in some certain cases that pass by way of Bequest by and under a Devise of Lands As thus A Man Seized of Land Devisable Buildeth a House thereupon the House is Devisable the Law is the same as to a Rent-charge de novo created Also a Man Disseisee of Land Deviseable Deviseth to the Disseisor in Fee in Recompence of a Release which the Disseisor made unto him This is a good Devise Also where a Man hath Land in Right of his Wife and he granteth parcel of it to another and after Deviseth the Residue to another This also is good Likewise where a Man hath a Seigniory to him descended of the part of his Mother and after the Tenancy descendeth unto him of the part of his Father both being Devisable and he not having any Issue In this case he may make Devises to several persons that is the Seigniory to one and the Tenancy to another The Lord Dyer also saith That a Termor of Land which is not Deviseable erecting a Furnace and fixing it in the midst of a House in the said Land may Devise this Furnace Also that where a Man is Seized of Land Deviseable and Deviseth totum statum suum to one and his Heirs This shall be a good Devise for the Land Likewise where a Man deviseth primam vesturam seu tonsuram prati which is Deviseable it is good and the Law is the same as to Trees growing and to grow for ever Also Tenant in Fee-simple or in Fee-taile may Devise the Corn though the Land be not Deviseable but as to Trees in that case the Law is otherwise Also a Man Seized of a Mill may Devise the Runner Stone but not the under Stone unless the Mill it self be Devised Likewise a Man Seized of a Common granteth a Rent out of the Land although that the Land be Deviseable yet that Grant is void and by consequence a Devise thereof Nor is an Advowson in gross Deviseable nor any other Thing which lyeth not in Tenure but a Mesnalty or Seigniory is Deviseable because they lye in Tenure And if the Husband Devise the Corn upon his Wives Land and dyes This is good whether the Corn were Sowen before the Marriage or after 3. The persons not qualified to Devise Lands by Will are such as These viz. A Bishop may not Devise the Land of his Bishoprick but of the Arrearages of the Rent of the Bishoprick he may make a Devise by Testament The Law is the same as to a Deane or Parson of a Church Also the Master of an Hospital cannot Devise the Lands of the Hospital nor the Arrearages of Rent issuing out of the same In a word Spiritual Persons Arch-Bishops Bishops Deanes Arch-Deacons Prebends Parsons Vicars or any Member of a Corporation may not Devise the Land or Goods which they have in right of their Churches or Corporations For the Head or any of the Members of a Corporation cannot make a Testament or a Devise of such Lands or goods they have in Common because they are to go in Succession Also an Infant of the Age of 16. Years Seized of Lands Deviseable who may Alien it by the Custom yet he cannot make a Testament or a Devise thereof or if an Infant maketh a Will of his Land within Age and dyeth after that he cometh to full Age making no Revocation This is not a good Will And yet although an Infant until he be of the Age of 21. Years can make no Devise of his Lands Yet it is held that by special Custom in some places where Land is Deviseable by Custom they may Devise it sooner Also a Woman under Covert cannot make a Devise of her Land with or without her Husbands consent neither to her Husband nor to any other Yet of the Goods she hath as Executrix to another she may make an Executor without his consent but of them she can make no Devise either with or without his consent because they are not Deviseable and if she do Devise them the Devise is void Touching such as are Born both Deaf and Dumb The Lord Dyer says They may make a Will of their Land by Signs Though others Affirm That a Man that is both Deaf and Dumb and that is so by Nature cannot make a Testament but that a Man that is so only by Accident may by Writing or Signs so also may a Man that is only Deaf or Dumb whether by Nature or Accident Also an Alien Born and not Denizon'd cannot make a Testament of his Lands yet if an Alien Purchaseth Land in Fee and maketh a Will and after the King maketh him a Denizon after he dyeth his Will is then good as to his Lands or Goods Also a Traytor Attainted from the Time of the Treason committed can make no Devise either of his his Land or Goods for they are all forfeited to the King yet a Pardon from the King restores him to a capacity of dying Testate as to both Likewise a Man Attainted or Convicted of Felony cannot by Testament Devise either Lands or Goods for they are also forfeited but if he be only Indicted and die before Attainder he is then Testable as to both or being Indicted will not Answer upon his Arraignment his standing Mute may possibly preserve him a power of Devising his Lands And although the Testament of a Felo de se be void as to his Goods and Chattels yet as to his Lands it is good So likewise although a Person Outlawed in a Personal Action cannot so long as the Outlawry doth continue in force make a Testament of his Goods and Chattels yet of his Lands he may not so of Persons Outlawed for Felony the Law is the same as to a Man Attainted of a Praemunire It is otherwise if a Man be only Excommunicated 4. Regularly all Persons who may be Grantees may be also Devisees Insomuch that a Devise of Lands is good within the Statute of Wills even to such persons as to whom a Legacy by the Civil Law is void except in certain cases such as Hereticks Apostates Traytors Felons Excommunicates Out-laws Bastards unlawful Colledges Libellers Sodomites manifect Usurers and Recusants Convict It is a Rule That the Devisee must be capable of the thing Devised at the Time of the Devisors death if it be then to take effect in Possession or if it be a Remainder he must be capable of it at the Time when the Remainder shall happen otherwise the Devise is void If so then a Devise to an Infant
its Integrals or defective as to its more Noble and more Principal Parts and Members as having but one Eye or but one Hand albeit the Creature hath life the Legacy hath none For although an Amplication of the natural Form in this Case doth no prejudice yet a Mutation thereof will understand not this as if it did extend to Hermophrodites For if they be not in a double Capacity as to Legacies as well as other things yet they are not excluded a single Capacity but in that Case it is provided That that Sex which most prevails with them in Nature shall likewise prevail in Law as to the Legacy Bequeathed 107. To conclude with the Pope because much of the Law that treats of this Subject if I would have travell'd that way borders on his Dominions it is Asserted or Legended which you please by a very learned Author That Nemo praeter Papam potest alterare voluntates Testatorum It is nothing strange that he who assumes a Power to dispose of Souls should alter the best faculty thereof for the Wills Society is the Creatures Felicity 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 FINIS INDEX GENERALIS OR An Alphabetical Table Comprizing all the Material Points of Chiefest Remarque in this Testamentary Abridgment with Reference to each Page and Paragraph A. ACceptance of Executorship in what Cases Compellable by Law p. 91. § 2. Accessorie Advantages to a Legatary between the time of making the Testament and the Testators death p. 291 292. § 19. Accompt Executors Obliged to Accompt with the Ordinaries power therein p. 150. § 1. Within what time they are â—o Accompt Ibid. § 2. Though it be Judicially made yet it shall not Prejudice Absent Creditors or Legataries not being duly Summoned Ibid. § 3. Whether Accompt lies against Executors for Money paid to their Testators by vertue of the Privy Seal p. 113 114. § ult It lyeth against the Executor of an Accomptant for Money received by his Testator although paid by Order frm the Lord Treasurer Ibid. It lyeth not against the Executor of an Accomptant except for the King p. 128 129. § 2. Actions Maintainable by Executors or Administrators p. 100 c. Personall Actions in the Testator are none in the Executor Ibid. § 2. p. 129. § 3. Actions Maintainable against Executors or Administrators p. 105. c. Personall Actions lie not against Executors as such p. 129. § 3. Whether Actions and Right of Actions fall under the Notion of Goods Devised or under the Notion of Moveables and Immoveables p. 306 307. § 1 2. Administration how it shall be granted p. 153. § 5. Whether it may be Granted by Word only Ibid. § 5. p. 163. § ult Whether it may be Granted Conditionally and with an Ita tamen p. 162. In what case it may be Granted notwithstanding an Executorship Ibid. It may be Granted of the Goods of a Woman Covert Intestate Ibid. Two Letters thereof may be Granted and both Good p. 69 70. § 5. What Acts amount to an Administration p. 162. § ult To take in any of the Testators or Intestates Obligations and give others in stead thereof is an Administration and alters the Property Ibid. p. 159. § ult To whom of right it belongs p. 169 c. Granted to an Executor of his own wrong will not Justifie him p. 162. § ult To whom it belongs Durante Minoritate p. 67 68. § 4. When it ceases ibid. Committed Durante Minoriaetate p. 154. § 6. Granted by the Metropolitan where there is not Bona Notabilia is voidable not void otherwise if Granted by a Bishop when it appertains to the Metropolitan p. 167. § ult In what Cases not voidable only but void also p. 159 160. § ult Granted a Caveat depending void p. 171. § 5. Adminstrations Fraudulent and Revokable p. 164 c. Whether to say granted by a Bishop a good Plea without shewing that he was Loci illius Ordinarius And whether so of a Dean or Arch-Deacon p. 155 159 160 161 c. § ult To say Granted by A. W. LL Dr. no good Plea because not shewed to be Bishop or Ordinary p. 161. Administration Durante Minori aetate ceaseth at the Age of 17 Years p. 67. § 2. Administrator What he is in Law p. 151. § 1. His Origination Ibid. § 2. What in a Notion distinct from Executors p. 151. After an Executors death how the Law in that case provides p. 152. § 3. Administrator of an Intestate Executor may not meddle with the first Testators Goods p. 69. § 4. He is an Assigne in Law as well as an Executor p. 161. § ult In what case Acts done by a former Administrator are good notwithstanding Letters of Administration after Granted to another p. 165 166. § 4. In Plea he must shew not only who Granted his Letters of Administration but also that he had Legal power so to do p. 158 159. § ult What sales or disposals of Goods an Administrator may make Durante Minoritate of the Executor p. 156. Administrator pendente Lite of a Citation to Repeal sells Goods good for he hath Lawfull power to Dispose c. Otherwise in an Appeal p. 166. § 5. In what Case an Administrator only in pretence shall be no Legatary in reality p. 318 319. § 26. Advowson in Fee how Devisable p. 288. § 5. Advowson in Gross not Devisable p. 225. § 2. Whether an Advowson may be Assetts p. 122. § 8. Age At what Age Minors may be Devisors p. 205. § 1. Age Superannuated into Dotage Intestable p. 13. § 4. Alien not Denison whether he may be an Administrator p. 170. § 4. Alien Administrator though Enemy may Sue p. 103. § ult Alien not Denizon intestable as to Lands p. 226. § 3. Alienations Prohibited to Devisees with the difference between necessary and voluntary Alienations p. 298. § 48. A Tripartite Case in Point of Alienations prohibited by the Testator p. 248 249. § 49. All How that word is to be understood p. 311. § 14. Anabaptists by the Civil and Canon Law Incapable of being Legataries p. 207. § 2. Animus Testandi Necessary in every Testator in making a Will or Devise p. 2. § 2. p. 202. § 2. Annuity when payable if no fix'd time be set by the Testator p. 306. § 20. p. 439. § 3. p. 444. § 78. Apostates Intestable p. 21. § 4. Incapable of a Legacy p. 206. § 2. Appellation of things ought not to be besides the Testators Intention p. 294. § 29. Appurtenances by that word shall pass Lands commonly used with a Messuage Devised p. 272. § 6. They are not where the one is Freehold the other Coppyhold p. 235. § ult Arbitrament made in writing against a Testator doth not charge his Executor p. 108. § 6. p. 110. § ult Debt thereupon against an Administrator not good p. 109. § ult Assent of an Executor necessary to the having of a Legacy p. 162. § ult Assent to
ad Reg. jur l Plowd ubi supra 2 R. 3. 20. per Starkey 22. per Vavasor m Ibid. 9 H. 5. 13. n Fulbec Parallels lib. 1. Diolog 7. fo 44. 11 H. 4. pl. 31. 21 E. 4. 81. o 20 E. 4. 17. 21 F. 4. 3. 21 H. 7. 31. per Fineux p 8 E. 4. 3. per Brian q 7 H. 18. 27 H. 6. in Scir fac 7 El. Com. Greisbrocks Case 275. Labridg dez Cases Edit A. D. 1599. tit Execut. nu 3. Fulb. ubi supra f. 44. l. Scimus §. in Computatione Cod. de jure Deliberandi r Dict. l. Scimus §. in Comput cap. Stat. §. Statuimus l. 3. prin Const Cant. s Plowd in Cas inter Woodward and Parry Labridg dez Cases fol. 174. nu 3. t Fulb. ubi sup fol. 44. u dict L. Scimus §. in Com. w Plowd Com. 185. x Offic. Exec. c. 2. nu 4. y Plowd Com. 185. 13 H. 8. 15. 11 H. 4. 83. 12 H. 4. 21. 20 Ed. 4. 17. 21 H. 4. 3. z 12 H. 4. 21. Offic. Exec. ubi supra Pasch 1 Jac. B. per Curiam Roll. Abridg. tit Execut. A. Trin. 7 Jac. B. Roll. ibid. lit G. Co. par 8. 135. Sir John Needham's Case Trin. 12 Jac. C. B. Fryer vers Gildring Moo Rep. nu 1174. Mich. 7 Jac. B. R. Flud Rumsey's Case Yelv. Rep. Debtor fait Executor uncore il paiera Legacies a No. Na. Bre. 88. Reg. Orig. fol. 102. b 37. Ass p. 11. An Executor of a Lord shall have Fines Assessed upon the Tenents at their admittances in the Lords time Rent c Offic. Exec. cap. 5. d Dye◠275. e Dyer 283. 34 H. 6. 27. Presentation f Coke 10. 87. Littl. Sect. 740. Fitzh Account 56. F. N. B. 120. Brownl 1 part 77. 106. Terms of years g Coke 8. 95. 10. 87. Plowd 524. Lease for years h Brownl 19. 30. 1. part Coke 7. 12. Forseitures on breach of Covenants i Sheph. Epit. chap. 155. fo 983. k New Terms of Law Tit. Assigns Coke sup Littlet 46. l No. Na. Br. 88. Reg. Orig. fol. 102. m Offic. Exec. c. 5. §. 1. n Ibid. cap. 5. Corn standing o Perk. tit Devise fol. 99. Hops Tythe set out p Offic. Ex. ubi supra Garden Fruits q Ibid. Writings and Evidences touching Chattels Corn standing Trees r Coke 4. 63. s Coke 11. 50. Perk. Sect. 58. t 21 H. 6. 30. If other Goods chance to be taken among them he is excused 21 H. 7. 25. Vid. Lib. Intr. 640. u New Terms of Law Tit. Assigns Coke sup Littl. 46. Presentation to a Church w F. N. B. 34. a. B. Perk. Sect. 97. Bodies Politick x Coo. 4. 65. Perk. Sect. 58. Advowson y Littl. Sect. 740. 14 H. 4. 24. 34 H. 6. 27. 〈◊〉 N. B. 120. Broo. Oblig 18. 68. Fitz. Account 56. Chest of Writings z 22 Ed. 4. 7. 3 H. 7. 15. Co. 10. Loves 87. 18 F. d. 4. 3. 41 Ed. 3. 2. 14 H. 4. 6. Roll. Abr. tit Execut. lit v. a Kelways Rep. fol. 118. b Perk. tit Devise fol. 99. c Coke Rep. lib. 4. in Herlakendens Case in fin fol. 63 64. d Coke 4. 63. 21 H. 7. 26. e Coke ubi sup in Herlakenden's Case f Rebuff D. D. in L. pen. ff de Verb. Sign In the latter end of H. seventh's time an Executor taking a Furnace which was set in the middle of a Room and not fixed to any wall was adjudged as a Trespasser to the Heir g Kelways Rep. fol. 88. nu 2. Labridg dez Cases tit Execut. fol. 181. nu 4. Offic. Ex. ubi supra h Offic. Ex. cap. 5. 41 E. 3. 2. 36. H. 6. 26. 18 E. 3. 4. 3 H. 7. 15. i Dyer 316. D. Stud. 35. Perk. Sect. 59. k Hill 7 Jac. B. R. per curiam l Offic. Ex. cap 5. m St. 32 H. 8. cap. 37. Coke 4. 48. n Offic. Ex. ubi supra o Littl. Inst lib. 3. cap. 5. Sect. 339. p Ibid. 43 E. 3. 2. 10 E. 4. 5 6. q Perk. tit Devise fol. 104 105. Brook Abridg. tit Devise nu 19. r Ibid. s Kelways Rep. fol. 107 108. nu 25. t Hill 20 Eliz. Dyer 361. vid. Plo. Com. 114. 259. acc u Dyer ' s Read in St. of Wills Sect. 3. §. 4. * By the Civil Law Bona Parapherna sunt quae Mulier ultra dotem adfert it is a word borrowed from the Greek de his bonis Maritus Administrationem habet ità ut sine speciali uxoris mandato agere convenire possit Myns Inst 97. Mention is made thereof at the Common Law where it is called Bona Paraphonalia 12 H. 7. 23. 18 Ed. 4. 11. b. And the Wive's Apparel is called Bona Paraphonalia 18 E. 4. 11. B per Vavasor The Wife after her Husbands death shall have the apparel necessary for her and not her Husbands Executor 37 H. 6. 28. 33 H. 6. 31. Bro. Execut. 19. a l. hac lege leg fin Cod. de Pact Covent sup dore b l. ob maritorum Cod. Ne Uxor pro Marito c Dyer fol. 166. d What Paraphernalia are see Alex. lib. 1. Consil 42. Col. 6. vers nec Obstat Lib. 2. Consil 63. Col. ult e Littl. Sect. 281. 320 321. Perk. Sect. 525 526. f Eliz. Dyer g 21 H. 8. 5. h Offic. Ex. cap. 5. i 37 Ass p. 11. a 9 E. 4. 12. 14. 21 E. 2. 13. 〈◊〉 H. 8. 21 22. b 38 E. 3. f. 9. c Offic. Ex. c. 9. d Book of Entries and so held in An. 12 H. 7. Lib. Entr. f. 327. Kelw. Rep. fo 23. 11 H. 6. 38. a. 4 Eliz. Dyer 210. P. 4 H. 8. Rot. 303. Tr. 34 El. Pas 36 Eliz. Two have a Lease for years as joynt-Executors if one of them alien the whole it shall bind the other for each hath an entire power to dispose the whole both being possessed in right of the Testator 37 Eliz. B. R. inter Pannel Fen. Agreed and Adjudg'd Roll. Abr. tit Execut. lit O. e 37. H. 6. 17. 9 H. 6. fol 44. 38 E. 3. 9 Brook Exec. 13. 20 21. f 9 H. 6. 44. Bro. 13. 33 H. 6. 38. Bro. 20 g 9 Ed. 3. cap. 3. h Offic. Ex. c. 9. i 37 H. 6. 30. 7 H. 4. 13. k 8 Ed. 4. 24. Execut. 31. l Fulb. Paral. part 2. Diolog 3. fol. 33. a Offic. Ex. cap. 10. in pri◠b Perk. 6. 1. c A. 5 E. 3. 17. 21 H. 6. 43. d Coke lib. 9. 83. b. in Pinchons Case e Littl. tit Villenage 41 42. f Offic. Ex. cap. 7. g Plowd Com. 52. 5. inter Brans by Grantham p. 20 Eliz. a Littl. Inst lib. 3. cap. 5. Sect. 339. b Coke ibid. c Ibid. d Ibid. e Coke ibid. If all the Executors write a Letter to
the Ordinary desiring him to commit Administration for that they cannot attend the Execution of the Executorship or the Will it is such a refusal as that they cannot afterwards Administer Hill 31 Eliz. Bâ—wacorn vers Cartor Moo Rep. nu 426. a Boic Panor Bar. in C. Tua nos de Testa Plowd in Cas in t Greisbr Fox Legat in Libertatem de Execut. Testa ibi Jo. de Athon verb. approb Consu b Brook Abr. tit Admin nu 32. tit Execut. nu 49. 102. 31 H. 8. cap. 5. c Bald. in L. deberi C. de Fidei Commiss Plowd in Cas in t Greisbr Fox d Broo. Abrid tit Admin n. 33. e Abridg. dez Cas tit Administ nu 2. fo 183. f 21. H. 8. c. 5. g Panor in C. Jo. de Test Ext. nu 3. Oldend de Execut. ult vol. tit 7. in fin h Plowd in Cas inter Greisb Fox i Fitzh Abrid tit Execut. n. 35. k Gribal Thes Com. Opin verb. Tutor Rom. Consil 235. l Ibidem m Auth. hoc amplius C. de Fidei Com. Novel de haered Falcid §. si quis autem Cok. 9. 37. Fitzh tit Admin 6. 11. Bro. tit Adm. 32. Perk. Sect. 485. Dyer 160. 21 Ed. 23. n Coo. lib. 5. fol. 28. o 22 Ed. 3. 19. 15 Ed. 3. 8. p 41 Ed. 3. fol. 22. 21 Ed. 4. fol. 24. q 42 El. Coke 9. fol. 36 37. r Bro. tit Ex. 〈◊〉 38. Dyer fol. 160. s Bro. eod tit 〈◊〉 37. nu 117. Vid. Part. 1. cap. 20. §. 6. Mich. 29 30 Eliz. C. B. Broker vers Charter 〈◊〉 Rep. par 3. a Offic. Ex. c. 3. §. 1. 9 Ed. 3. fol. 33. 47. 7 H. 4. 18. b Littl. Sect. 69. Plowd 281. Bro. tit Execut. 129. c Offic. Ex. ubi sup Coke 6. 18. 9. 38. 5. 27. Plowd 280. 9 Ed. 4. 47. 36 H. 6. 7. Fitzh tit Admin 2. 6. Brow 1. part 76 77. 73. 53. d Dyer in Plo. Com. 281. Case of Greisbr Fox e Trin. 2 Jac. in Com. Ban. inter Middleton Rinnot 18 H. 6. 23. b. Pl. Com. 277 278. in Greisbrooks Case per Weston vid. Coke lib. 3. cap. 8. Sect. 512. f Plowd in Cas inter Greisbrook Fox g Lynwood in C. Statut. §. inventarium tit de Testa lib. 3. Const Prov. Cant. verb. prius h Legat in Libertatem de Execut Testam i Jo. de Atho in dict Legat in Libertatem verb. inventarium dict C. Statut. §. inhibemus in Text. in Gloss k Dyer 2. l Plowd 543 544. Mich. 1652. B. R. Long Hobbs Case Stiles 341. Pasch 42 Eliz. Anders Rep. par 2. Case 83. m Plow Com. 184. n 6 H. 8. Dyer 2. 20 H. 7. Kellway 58. o Coo. 5. part 30. Coulters Case p Mich. 2 Eliz. Dyer 187. q Pasch 30 El. in C. B. Stamp Hutchins Case Leon. 111 112. Shelley vers Sackvile Anders Rep. par 1. Case 50. vid. 20 H. 7. fol. 2. 4 5. M. 6 E. 6. a Text. in C. Statut. §. Inventarium tit de Testa lib. 3. Prov. Const b Lynw. in C. Statut. verb. Arbitrio c Gazal verb. Inventarium d Fulb. Paral. 2. part 3. Diol fol. 32. e Fran. Porcel in Tract de Inventorio q. 2. §. Sancimus De Haered Fall in Auth. f 21 H. 8. cap. 5. g Terms of Law verb. Chattels quae sunt Cat. Re. h Perk. tit Devise fol. 99. i Perk. ibid. k Coke Rep. lib. 4. in Herlakendens Case in fin fol. 63 64. l Kelw. Rep. fol. 88. nu 2. Labridg dez Cas zit Exec. fol. 181. â—u 4. m Ibidem n l. hac lege l. fin C. de Pact conven sup Dot. o l. ob maritorum Cod. Ne uxor pro marito p dict Stat. 21 H. 8. c. 5. q Glos in l. Chirographus ff de Adm. Tuto r St. H. 8. ubi supra s Trin. 15 Char. in B. R. Sir John St. John's Case a Sheph. Epit. cap. 115. b March 329. 13. Pl. 13. Plowd 181. Coke 11. 90. Weast 2. cap. 22. F. N. B. 117. Dyer 322. Cok. 11. 41. 6. 80. 9. 86. St. 9 H. 6. cap. 4. Broo. tit Exec. 161. Cok. 5. 27. St. 7 H. 4. c. 6. Cok. 4. 50. Broo. tit Exec. 169. 122. Coke 9. 85. Action Dyer 144. 322. 69. St. 12 H. 8. cap. 10. Brownl 1. par 101. c Dyer in Pl. Com. 201. Case of Greisbrook and Fox d Sheph. Eâ— ubi sup e Cok. sup Littl. 146. f Cok. 4. 50. 32 H. 8. c. 37. Note â—hat in all Cases and Actions brought by Executors as Executors the Writ shall be in the Detinet tantum although the duty doth accrue in his own time because the thing recovered shall be Assets And so it was adjudged Pasch 7 Jac. in B. R. in the Lord Rich and Franks Case 43 Eliz. in B. R. in Sparks Case g 6 Eliz. Dyer 227. Cok. sup Littl. l. 2. c. 12. Sect. 220. h 21 H. 6. 30. 21 H. 4. 49. 69. 42 Ed. 3. 13. 14 H. 6. 14 15. i 3 H. 6. 40. Littl. 44. Cok. 81 69. 11 R. 2. Excom 25. k Broo. tit Exec. n. 98. argum c. debitum de Baptis Extr. l. preter ff de Tut. Cur. dat Fitzh tit Exe. nu 32. l Broo. eod tit n. 104. m Broo. tit Exec. nu 99. n 36 H. 6. cap. 7. Cok. 8. 135. o St. 2 R. 3. c. 17. p T. 4 H. 3. referente Fitzh tit Prohibit q 32 H. 8. c. 37. Pasch 1 Eliz. B. R. Benl Rep. Hugh Abr. tit Execut. acc 2. Anders Rep. par 1. Case 49. C. B. vid. 2 R. 3. fol. 8. 10 E. 3. fol. 26. H. 8. fol. 7. H. 28 H. 8. inter Levet Lewknor Mich. 15 16 El. C. B. Hunks Alberoughs Case Anders Rep. Cas 45. Anders Rep. par 1. Case 8. inter Taw and Bury vid. Dy. 〈◊〉 Eliz. and Whelpdales Case 5. Rep. fol. 119. E cont H. 1 Eliz. Rot. 442. Trin. 41 Eliz. Lambe Executor of Drables vers Brownwent Pasch 41. Eliz. Brocks vers 〈…〉 illips Cro. Rep. par 3. Miâ—h 38 â—9 Eliz. B. R. Edwards vers Stapleton Cro. Rep. par 3. Pl. 1. Trin. 39 Eliz. C. B. Case Pilkin 〈…〉 vers Dal on Cro. Rep. par 3. Pl. 1 〈…〉 Mich. 14 Jac. B. R. Sir John Cutts vers Bennet Cro. Rep. 2. par Pl. 9. Pasch 10 Jac. B. R. Browning vers Fuller Cro. Rep. par 2. Pl. 1. Mich. 7 Jac. B. R. Haywarth vers David Cro. par 2. Pl. 6. Pasch 37 Eliz. iâ—t Hâ—râ—is Vanâ—â—ge Moo Rep. nu 526. Mich. 44 45 Eliz. B. R. Yate vers Goth. Moo Rep. nu 931. Mich. 3 Ed. 6. Moo Rep. nu 25. Mich. 15 Char. B. R. in t Goslyn Osburn per Curiam Rolls Abr. tit Execut. lit c. a Offic. Exec. cap. 10. b 4 H. 6 16. c Noke Anders Case d