OR A TREATISE OF WILS AND EXECUTORS, DIRECTED TO Testators in the choise of their Executors and Contrivance of their Wills. With direction for Executors in the execution of their Office, according to the Law, and for Creditors in the recovery of their debts. Expressing the Duty, Right, Interest, Power and Au­thority of Executors, and how they may behave them­selves in the office of Executorship. With divers other particulars very usefull, profitable, and behovefull for all persons, be they either Executors, Creditors or Debtors.

Compiled out of the Body of the Common-law, with mention of such Statutes as are incident hereunto.

LONDON, Printed by T. C. for Andrew Crooke, Laurence Chapman, William Cooke, and Richard Best. 1641.

The Preface.

AMidst the Readers of these Discourses; some not yet unfriendly may aske, per­perhaps, Quorsum haec, or Quorsum sic: why have we a tractate and di­scourse legall; or why in English and not rather in the Law language? To whom, yea, also to others, perhaps lesse inquisitive, it will be, as I thinke, a thing not unpleasing to heare some reason rendred, why I have set my head and hands to this worke so little in use with those of our profession; why also in English rather than in the language wherein our volumes of Law are for the most part, and well-nigh wholly written.

First, for the matter, viz. my thus com­m [...]nting or making a tractate upon a legall theme.

I have long and strongly conceived that 1 [Page] the more Nobles, Gentlemen and others; shall be acquainted with the Law of the Land, and the justnesse, equity, prudence and provi­dence thereof, the more they will love it and affect it; Igno [...]i nulla cupido, the want of knowledge of it causeth the leannesse of love to it. Therefore to bring Nobles and Gentlemen into acquaintance with the Law, is a meane as well [...]o advance it in their esti­mation, as to advantage them by it.

2 I have long thought that we who are the Professors of our Law have been more wan­ting to it than to theirs, the Civilians and Canonists, who have written very many vo­lumes: Spartam quam nactus es, hane ex­orna, hath been said of old, and should be assayed anew.

3 More wanting than others before us of our owne profession have we also been as I think: yet as of old Britton, Glanvill, Bracton, besides not printed, Fleta and Ingham, did lead the way; so since Master Littleton, and more lately Sir Germin Perkins, Fitz­herbert, Stanford, Crompton, Lambert, Kitchin, Sir Henry Finch, Dalton, have [Page] troden this path; so as it cannot be taxed with novelty or singularity. I mention not rela­ters or reporters of Iudgements and resoluti­ons, nor meere abridgers, nor Authors of Books of Entries, expressing formes of De­clarations and Pleadings, &c. because these have troden another, though for the Students and professors of the Law, a very profitable path.

The tax and increpation of our late lear­ned 4 and judicious Soveraigne upon us the Professors of the English Law,King lames in his Preface to to his Booke a­gainst Tobac­co. as being wholly in effect addicted to our owne pri­vate gaine and advantage, with neglect of the publike, had some strong operation upon me, howsoever upon others, setting for di­vers yeares past my pen on worke, specially in Summer vacations upon divers particu­lar subjects, whereof this is one and the first borne.

To this I may adde the Crownes expe­ctation 5 of somewhat legall to bee published and set forth from time to time, as appeares by the speciall Patents successively granted, and renewed for the sole printing of books of [Page] Law. There is one such in force at this pre­sent, and another long hath been in remain­der and expectancie to take effect upon the expiration thereof.

6 And now to adjoyne Sic to haec, viz. the reason of my English writing to that of my writing upon a law theme. First receive the said late Kings judgment touching both, ex­pressed in one of his speeches printed.March 1609. Thus. I wish, saith he, the Law written in our vul­gar language; For now it is in an old mixt and corrupt language, onely understood by Lawyers,Note. whereas every subject ought to un­derstand the Law under which he lives, &c.

7 Herein, Andrew Horne, one sometime of our profession,In his Mirror of Justice. agreeth with the said late King, saying, Abusio est que l [...]s leges o­vesque lour ench [...]sons, ne soient s [...]us & conus del touts: It is an abuse▪ saith he, that the lawes with their grounds be not knowne by all. Ergo, to bee in a tongue un­derstood by all.

8 More plainly and fally doth that our both well lea [...]ned and well descended St. Ger­man, sing in consort with our said late sci­entious [Page] King.Lib. 1. cap. 24. For he first brings in the Do­ctor of Divinity, saying, that hence-forth he will take more paine than before he had done, to know the Lawes of England; for that knowledge is Multum necessaria & clericis & laicis, imo omnibus in hoc regno commorantibus, etiam in foro conscientiae. And this being in his first booke written in Latine: After writing his second booke in English, he expresseth that he so did for this reason, viz. To the end that it might be under stood by all.

Which of us hath not heard it objected,9 that we the professors of the Law seek to hide and secreat the knowledge thereof under this dark and distasted language, wherein the law is for the most part written, not that I hold it any just excuse for the nescience or negli­gence of any, that our books are not in Eng­lish. Since, first, it were easie for any dili­gent and intelligent man, specially if ac­quainted with the right French language, so understand our broken or brackish French in a few dayes. Secondly, there be both statutes and some other law-books in English, which [Page] are neglected by the most. Thirdly, though care hath beene in Parliament in Edward the third his time,36. Ed. 3. c. 15. that Lawyers should plead, that is, argue and debate causes in English, which was often desired by the No­bles and Commons, till at last assented and enacted;2. & 3. Phil. & Mar. cap. 6. in fine. and in Queen Maries time care was taken that the Commissions of Purveyors should be in English, to the end that all sub­jects from or of whom they would take, might both see them to be persons authorised, and so also in what manner they are directed to use their authority, according to the Princes pi­ous and princely care that his subjects should not be abused by his Officers: Yet for this af­faire, of having all the Law-volumes speak English, I have not heard nor read of any de­sire or endevour in Parliament. Fourthly, If the Annals and Reports were in English, they are so replete with debates about formes of Writs, Returnes, Pleadings, Essoignes, Imparlances, Protections, Vouchers, Ayd­priers and Counterplees of both, and the like, as would easily distaste and discourage any not intending to professe and practise the law, [Page] from versing much in them, or passing through them. This therefore, as I thinke, would not much effect the expressed desire.

The thing in my judgement fit and fruit­full to produce that good effect, would bee to have extracts of materials of the Law; and that not without some good choice and se­lection, composed in way of discourse, or trac­tate expository, and that in English.

I cannot well see or comprehend how any 11 one legall part or theme may be more usefull to and for the generality of men, and conse­quently more generally expetible and wish­ed for, than the office of executors. For who almost is there, who either is not, or may not be an executor or administrator, or at least hath not, or may not have to doe with them, either to receive from them, or to pay to them debts or legacies. Or who is there above Forma pauperis that may not be a testator, or will maker, to the guidance of whom even in the choice of his executors, and contri­vance of his will, it cannot but be materiall to know the office and duty, the right and in­terest, [Page] the power and authority of executors, yea, of each one executor where there be di­vers; yea, to know who may be made an exe­cutor, who not; who can make one, who not; how he may be fashioned, generally or speci­ally; what shall come to him, what cannot be given from him; yea, what goods or chatels shall goe from him, though not given from him. Besides the knowledge for those others necessary of the safest wards or locks for exe­cutors. Their Scilla and Charibdis, and the best advantage for creditors, &c. to­wards or against them. To mee considering what parts of law were most behovefull to bee communicated to all willing Readers, none appeared which could challenge of this the precedence, and therefore I gave it the first and leading place. Thus my owne thoughts. But how farre this discourse may bee profitable to any, and to how many, aliorum sit judicium. How many know no more of these, than of the way of a ship up­on the Sea?

12 Lastly, these are not intended for the [Page] learned of our profession, who have drawne or can draw out of the same fountaine which I did, and so need not my helpe; but for their sakes who are not professors of the Law: yet so as if any young Students may in any part receive fruit by my labour, I shall not grudge or repine at their so doing. Bonum quo communius, eo melius.

The first Table.

Chapter I. The being of Executors; and therein
  • 1 OF the relation betwixt a will and an execu­tor, whether one may be without the other, Fol. 2.
  • 2 Of the severall kindes of Willes, 7
  • 3 What will amount to the making of an executor, and what words requisite thereunto, 10
  • 4 How an execut [...]r or his executorship may be limited or qualified in speciall manner differing from the generall, 12
  • 5 Who may make an executor, 17
  • 6 Who may be made executors, 21
  • 7 What one may give or bequeath by his will, ib.
  • 8 Of the revocation and countermand of wills and new publication, shewing how a will or executor once made may be unmade, and what shall amount to a revocation totall or partiall, and what to a new publication, 25
  • 9 Of new publications, 30
Chap. II. The having of executors, shewing the state of things instantly upon the testators death, before any Will proved.
  • 1 WHat is wrought by the gift of a thing certaine and knowne, as the white Horse, the red Cow, &c. 33
  • [Page] 2 Of a bequest to an executor, 34
  • 3 Of a discharge or release by will to a debtor, 36
  • 4 Of making the debtor executor, 37
  • 5 Of making the creditor executor, 39
  • 6 What may be done by or to an executor before proving of the will, 42
  • 7 Of refusall to prove the will, and therein of administra­tion forecluding refusall, 45
  • 8 What shall be said, such a medling and administring by an executor, that he cannot refuse after, 47
  • 9 Of the force and effect of refusall, 51
Chap. III. Of proving Wills.
  • 1 HOw, and where, and before whom wils ought to be proved, 53
  • 2 Bona notabilia, what they be, 55
  • 3 Which may intitle the Metropolitane, 56
  • 4 Of the validity and invalidity of right or erroneous pro­bates, 58
  • 5 Of the relation of probate and refusall, 60
Chap. IV. Of fees payable for probates.
  • 1 OF copies of wils or inventories, and what fees due per stat. 21 Hen. 8. cap. 5. 61
Chap. V. Of goods and chattels.
  • 1 WHat things shall come unto executors, and said to be assets in their hands, and what not, 63
  • 2 Of chattels reall possessory, 64
  • 3 Some cases doubtfull or lesse cleere touching chattels re­all, 66
  • 4 Of chattels personall, 68
  • 5 Cases more doubtfull touching chattels personall, 70
Chap. VI. Of things not actually in the testator, yet accruing to the executor, 1. by action or suit, 2 by [Page] condition or covenant, 3 by remain­der or increase.
  • 1 OF things in action, 79
  • 2 Chattels come to executors from the testator, yet not assets, 88
  • 3 Assets which be no chattels, 90
  • 4 Foure things personall in action changed into things re­all, & è contra, 92
  • 5 A case of equity opposing law, 93
  • 6 Of things accruing by condition, ib.
  • 7 Of things accruing by covenant or assumption, 101
  • 8 Of things accruing by remainder or increase, 102
Chap. VII. Of the interest which the executor hath in the testators goods.
  • 1 OF his interest in generall, and how different from the interest in their own proper goods, 106
  • 2 Of the alteration of property in the executors hands, so as some become his own which were the testators, 110
Chap. VIII: Cases betweene the heire and executor,
  • VVHerein divers questions are resolved concerning their distinct rites, 112
Chap. IX. Of suits by or against executors, and of the rela­tion amongst executors.
  • 1 All at but one represent the testators person, and must joyne and be joyned in suit &c contra, A. 115
  • 2 Where one alone must answer suit, and how, B. 117
  • 3 When they differ in plea, the best shall be taken, but one may confesse alone, C. 121, 122
  • 4 One as well as all may give or release the whole, D. 121, 122
  • 5 One cannot give nor release his executorship to a coexe­cutor or any other E. 121, 122
  • [Page] 6 The possession of one executor is the possession of all the rest, F. the folio here is wrong, 121
  • 7 If the surviving executor dye intestate, the testator is intestate though the other executors left executors. G. 121
  • 8 The exec. so represents the person of the testator, as that the word assignee only makes him capable, H. 122
  • 9 What change by death of the testator in a proceeding in suit, I. 123
  • 10 Proceeding to or in execution, where without a Scire facias, K. 123
  • 11 Where the executor stands in his owne quality, where in his testators, M. 124▪ 125
  • 12 Where one executor alone may sue, N. 127
  • 13 Where some executors will not joyne with the rest in suit, the rest may sue alone, O. 127
  • 14 Where by the death of one executor, plaintife, or de­fendant, the writ is abated, P. 128
Chap. X. Of the possession of executors, or their actuall having.
  • 1 VVHat shall be said so to come to their hands as to charge them, 1 in things reall, 130
  • 2 in things personall, 132
  • 2 What shall be said, such a losing or going from them as to excuse them, 137
Chap. XI. Of an executor having assets, how far and where he is chargeable and lyable to action.
  • 1 PAyment of debts by specialty or record, 141
  • 2 Of debts or duties by simple contract without spe­cialty, 145
  • 3 Of debts without either contract or specialty, 149
  • 4 Of covenants charging executors by deed or specialty, 150
  • 5 Of wrongs done by testators, and how far the executors are lyable to make amends, 155


THe things considera­ble touching Execu­tors,Introduction may all in effect be reduced to these three Heades, viz.

  • 1. Their Being.
  • 2. Their Having.
  • 3. Their Doing.

By the first, I intend their creation, or con­stitution with, the incidents thereto. By the second, their Interest, Fruition, or Possession. By the third, their Managing and execution of their Office. This last was, and is the thing principally in my intention, and the chiefe [Page 2] ayme of these Discourses; but necessarily it must have some Ingredients, some Concomi­tants, and some Consequents; as he that travel­leth from London to Yorke to speake with I. S. must needs passe by & thorow other Townes and Villages, and speake with divers other persons in his journey and returne. To come first to the first; therein wee will consider these sixe things.

1. Whether an Executor and a Will be such Relatives, that one cannot be without th'other; and therein of the severall kinds of Wills.

2. How, and by what words an Executor may be made and created.

3. How he may be in speciall manner (diffe­rent from the generall) fashioned, limitted or qualified.

4. Who may make, or be made an Executor, and who not.

5. What one may give or bequeath by Will, what not.

6. How a will or Executor once made, may be unmade, and what shall amount thereunto, viz. To a revocation totall or partiall, what to new Publication.

Of the relation betweene a Will and an Executor.

AS to the first, the very name of Executor purporteth in the generall, one that is to [Page 3] execute somewhat, or to whom the execution of somewhat is committed, or recommended. In our particular therefore, an Executor of a Will must needs be such an one to whom the execution and performance of another mans Will after his death is commended, or com­mitted: Or who is constituted and authorised by the Testator, or Will-maker, to doe him that friendly office. Hence it followes neces­sarily, that a Will is the onely bed wherein an Executor can be begotten or conceived, for where no Will is, there can be no Execu­tor. And this is so conspicuous, and evident to every low capacity, that it needs no proofe nor illustration. On th'other side, though much be written in name of a Will, many Le­gacies bequeathed, and many things appoin­ted to be done:Plowd. eom. 1851 a. in Wood [...]. and Darcies Cases, so expresly faid. Yet if no Executor be named, here is no Will; for these two be so relative, and reciprocall, as that one cannot be without th'other; if no Will, no Executor; if no Exe­cutor no Will. Yet here two Cautions are to be affixed.Testamentum quasi testatio mentis. 1. That a mans minde, will, and intent, touching the disposition of his goods, being declared, although for want of naming an Executor he die intestate, so as Administra­tion is to be committed: Yet for that here is not onely an inchoation or inception of a Testament, but so farre a progression therein, as Testatio mentis, that is, the manifestation of [Page 4] the pa [...]ty deceased and owner of goods; there­fore this minde and intention of the Intestate being notified and made knowne to the Judge, who is to commit Administration, is usually annexed (as I take it) to the Letters of Admi­nistration, and meete so to be, as a direction, for, and to the Administrator; as well as the Will fully, and perfectly made, but refused to be proved by the Executor, which is usuall. Another Caution is, That where a man seised of Land in Fee-simple, disposeth the same, or part thereof by his Will in writing, this standeth good for the whole or part, accor­ding to the difference of Tenure, although no Executor be named; so as the party dieth In­testate, and Administration is to be commit­ted as touching his goods, and yet hath a Will as touching his Lands. This may seeme strange, that the reason thereof is an Act of Parliament, inabling to dispose of Land by Will in writing. And for that Land, is not properly Testamentary, neither hath the Ex­ecutor (if any be) anything to doe or inter­meddle therewith; and therefore is the ma­king or not making of an Executor, nothing pertinent to the validity or invalidity of this devise or disposition of Land by Will. So, as though where there is not Testatio mentis, there is not Testamentum; yet may there be the first without the later.

[Page 5] Having seene that bequests of Legacies without making of Executors, doth not a­mount to a Will. Let us now consider, whe­ther the sole making of Executors in the name of a Will, without giving any Legacie, or ap­pointing any thing to be done by his Execu­tors? Whether I say, this be, or amount un­to a Will or not? Since hereupon the matter nothing is willed, and consequently nothing rests to be executed by the Executors, whose Office, as hath beene said, is to execute the Will, Minde, and Intent of their Testator, and Vbi non est Testatio mentis, Summ. Silv. fo. 32. b. non est Testamen­tum, saith the Cannonist. For answer hereun­to, confessing that indeede to be the Office of an Executor; I yet conceive confidently, that in the Case above put, there is a good Will and as a Will, it is to be proved and ap­proved, for these Reasons. First, for that the maine and principall part of an Executors Of­fice, and that which most concernes the soule of the Testator (as our Bookes speake) is the payments of his debts. Now, who knowes not, but that the very making of an Executor, is the constituting of such a person, who is to pay all debts; and for that cause and end, principally is to have, and enjoy all the goods and chattels of the Testator, and all summes of money to him owing, as the naming of A. and B. Executors is by implication a gift, or [Page 6] donation to them of all the goods, chattells, credits, and personall estate of the Testator, and the laying upon them an Oligation to pay all his debts, and making them subject to e­very mans sute and Action for the same. And if the Law speake thus much sense; Quod necessario subintelligitur non deest; What neede then the party expresse it in his Will? If hee had willed more than this, as to have given this or that in way of Legacy, it had beene needefull for him, so to have set downe in his Will, but there is no meere necessity that every man should give Legacies: the estates of many will not doe more than pay their debts, nor oft-times so much, so as if they should give any Legacie, it must bee a dead and void gift. And suppose a man have much more, and intendeth all to his wife, brother, or sister, or other friend, his debts being by such person, paid since the very making of that party Executor, without any more, a­mounteth to thus much, and effecteth this; what needeth then more words? Frustra fit per plura quod fieri potest per pauciora; as we often speake touching legall passages; It is needlesse to write foure lines where two be sufficient. Nor is Testatio mentis here wanting; since the Testator hath made knowne who should have the Administration of his goods for payment of his debts, and it is to be presumed he had [Page 7] no more speciall Will; since hee did not de­clare more, but left his Executor further to have and doe, Prout lex postulat: And who can say here is nothing to execute? Is the su­ing for, and collecting of debts due to the Testator, and the payment of debts owing by him nothing? Nay, it is rather in hoc negotio, the Vnum necessarium. Besides, the making of an Executor is a designment, of a person to be the Testators assigne to whom, and by whom divers, things may be feasible by vertue of covenants, bonds, or other assurances, as after where we come to shew how the Exe­cutor represents the person of the Testator will appeare. Also of one, who, as our Bookes often speake, is to dispose the Testators goods for the best advantage of his soule, but insteede of that (since as the tree falleth so it will lye or rest) I will say, as is most for the honor and reputation of the Testator.

Of the kinds of Wills.

NOw Wills are of two kinds, or may be two wayes made, viz. either by writing, or Nuncupative; that is, by words not put in writing,4. H. 6. 1. 10. 8. 4. 1. during the Testators life: for after the Testators death,If it be writ­ten and brought to, and appro­ved by the Te­stator in his life, it is a Will in writing. this Verball Will must be reduced to writing, and have the seale of the Ordinary, or Judge spirituall thereto affixed; and then is it as effectuall, and of as good va­lidity [Page 8] as if it had beene in writing in the Te­stators life time;14. H. 6. 5. vide 5. H. 5. 1. M. 15. & 16. Eliz. and so doth the Common Law allow and approve thereof. But I advise all to make Wills by writing, and not to leave them to the doubtfull fidelity, or slippery Me­mory of witnesses: for, as of Leases Parroll hath beene said, that they be Leases perjured, or of perjury:

So of Wills Parroll may be feared. Besides, many times a man doth speake and declare this or that, as part of his Will, which his wife, child, or friend disswading, he letteth that pur­pose and part of Will to fall, & departs from it: Yet witnesses wishing it to stand, will perhaps affirme it as part of the Will. As for a Will, gift, and disposition of Land of inheritance, if it be not fully written before the death of the Testator or Doner, so farre (at least) as con­cernes the disposition of Land, it cannot be for that part made good, by reducing it to writing after his death, as for goods and chattels it may. Yet if it be written before the death of the Testator, though it never be brought to him, or reade to him, after the writing thereof, it is good enough: and that not onely for Land, [...] Dy. 72▪ as the Case in King Ed. 6. his time was, but also for goods and chattels, so as there be an Executor named. But whe­ther shall wee say, that this is a Will Nuncupa­tive or in writing? And surely I thinke, that [Page 9] this is a Will in writing, and not verball only, though it want subscribing; for wee know, that many cannot write their names, but onely markes, and what is that? Nay, suppose one want hands, and cannot write so much as his name; yet doubtlesse this man may make a Will in writing, that being written by his di­rection, as his Will which he dictated: nor is the subscribing of the name of the maker, any essentiall part of a Deede, much lesse of a Will, which needes not sealing as a Deede doth. Now put we the case on the other side, that many Bequests or Legacies be named in a Will, and many things expressed to be done, but no Executor is named in the writing, one­ly by word of mouth, A. and B. be named Executors. This I thinke confidently is no Will in writing, but Nuncupative onely; for that one essentiall part of the Will, viz. the making of Executors, is wanting in the wri­ting. Nay, the appointing of him Executor, who is named in a note, left with A. B. is no sufficient making of an Executor, saith the Summist. Tit. de Testim Summ. Silv. fo. 443. b. And of such Nuncupative Will, Master Perkins reasonably saith, that it pro­perly hath place,So if he survive and live long time, not cau­sing it to be a written, or atte­sted by witnes­ses; me thinkes it should not stand as his Will. when one suddenly taken with sicknesse violent, dares not stay the wri­ting of his Will, for feare of prevention by death; and therefore prayes his Curate and others, to witnesse what his Will is. To this [Page 10] Will not written, there must be seven witnes­ses, and such as come not by chance; but are especially called for that purpose,Idem supra fol. 444. b. saith the Summest.

What shall amount to a making one Executor, or what words requisite thereunto.

HAving before made it to appeare, that the being of an Executor, is an essentiall part of a Will, and so de esse, and not bene esse, onely of a Will or Testament. Let us now see, First, by what words an Executor may be made. Secondly, De modo, In what manner it may be done. How the power and authority of Executors may be limitted or divided. As to the first, though one do not expresly by Will, name or appoint any to be Executor: Yet if by any words or circumlocution, he recom­mend or commit to one or more, the charge and office which pertaines to an Executor, it amounts to as much as the ordaining or con­stituting of him or them to be Executors. As if he declare by his Will, that A. B. shall have his goods after his death to pay his debts,If A be made Executor, and to him and D. some goods be divi­ [...]ed to dispose for his soule, D. is by this an Executor for these. and otherwise to dispose at his plea­sure, or to that effect. By this is A. B. made Executor, as was conceived by the Judges, in the late Queenes time. And long before that,39. H. 6. 27. b. [...]8. M. 15. & 16. Eli. 21, H. 6. 6. 7. was it held, that if one doe onely Will that A. B. shall have the Admini­stration [Page 11] of his goods, he is thereby made Exe­cutor. Yea, in the said late Queenes time, one giving divers Legacies, and then appointing that his debts; and Legacies being paide, his wife should have the residue of his goods; so that she put in security for the performance of his Will. By this without more, was shee an Executor, as was held by three Iust. viz. Manwood, Harper, and Mounson, in the Lord Dyers absence. And so also where an Infant was made Executor, and A. and B. Over­seers, with this, that they should have the rule and disposition of his goods and payment, and receipt of debts, untill the full age of the Infant; by this were they held to be Execu­tors in the meane time. And if A. be made Executor, and the Testator after in his Will, expresseth that B. shall Administer also with him, and in aide of him: Here B. is an Executor as well as A. and if A. refuse, B. alone may prove the Will as Executor; notwithstanding it be onely said, that he shall Administer with A. and in aide of him. Thus many wayes, and by divers words of implication, and may be made Executor, although not expresly so na­med by the Will. But if A. be made Execu­tor, and B. a Coadjutor, without more, Hee is not by this an Executor with A. as in King H. 6. his time was held, nor hath such Coad­jutor,21. H. 5. 6. 7. or an Overseer any power to Admini­ster, [Page 12] or intermeddle otherwise,21. H 6. 6. than to coun­sell,34. Ed. 3. F. Exe. 121. 29. Ed. 3. 39 perswade, and advise; yet I thinke hee may, and in conscience should so doe; and if that will not prevaile to rectifie negligences, or miscarriages in Executors, hee shall well performe the trust reposed in him, if he com­plaine in the Spirituall Court, or Court of Conscience; and it is reason, as I thinke, that so doing upon just cause, his charges be borne out of the Testators state, or the Executors purse, who otherwise would not be refor­med.

How an Executor, or his Executorship may be limited or qualified in speciall manner, diffe­rent from the generall.

NOw let us see how this making of an Exe­cutor may be specially qualified. And first the time may be limited, when he shall begin to be Executor, and that, either cer­tainely, or with some reference to contingen­cie. Secondly, the creation may be conditio­nall. Thirdly, it may be partiall, or divided­ly, and not entirely.

As to the first,Ʋide Gresbroke and Foxe Plowd. one may appoint lo. At. to be his Executor a yeare or more time after his death,A. and B. made Exec. but ought not to meddle du­ring the life of A. and good. 32 H. 8 [...] [...]. 115. and this is good. So also, if A. ap­point B. his sonne to be his Executor when he shall come to his full age; and in the [Page 13] meane time he dieth Intestate. Againe, one may make and appoint the Executors of A. to he be his Executors; and then if he die before, A. is Intestate, untill A. die. This creation may also be conditionall, and the condition may either be precedent or subsequent. In the time of King H. 6. one named A. and B. his Executors;3. H. 6. fo. 6. and if they would not take it upon them, then C. and D. should be his Exe­cutors: and then there A and B. refused; and the question was, whether in sute against the debtors of the Testator, A. and B. should joyne with C. and D. as where foure Executors being named, and two refuse, and the o­ther two prove the Will, yet all foure must be named in sutes against the Testators deb­tors, as was there admitted. But in the prin­cipall case it was resolved that the sute should be onely in the name of C. and D. for that the appointing of them to be Executors, if A. and B. refused did imply, that then they onely should be Executors. And here all foure were never made, nor intended to be Executors, but A. and B. upon a condition subsequent that they should not refuse: and C. & D. upon a condition precedent, viz. if A. & B. did refuse. It is usuall to make one or more Executors, conditionally, that they put in security to pay Legacies, or in generall to performe the Will; nor was it ever doubted, as I thinke, [Page 14] but that this was good: yet I should advise, that such condition be plainely thus expres­sed, viz. either thus; that if I. S. doe put in security, &c. by such a day, that then hee shall be Executor, else not: or thus, viz. to make him Executor conditionally; that be­fore he doe Administer (Funerall perhaps ex­cepted) hee shall put in such security; else perhaps he being Executor till the Con­dition broken, in that meane time may have disposed of all, or most part of the Testators estate. In the late Queenes time, there was a Case remarkeable to this purpose: One Wil­led,P. 33, Eli. Alce Francis her case. that if his wife suffered I. S. to enjoy Blackeacre (being belike part of her Joynture) for three yeares, then she should be his Exe­cutor, or else A. B. should; and the question was in the Common Plees, whether presently before th'end of the three yeares, shee were Executor, or not till shee suffered the Land to be enjoyed three yeares: and it was held by all the Judges, but the Lord Ander­son, that she was presently Executor, untill she should disturbe I. S. &c. for upon that done; it was agreed, that the Executorship, would, by vertue of the Condition be transfer­red from the wife to A. B. But now during these three yeares might she have disposed of all the goods of her husband; yea, within one of these three yeares, and lesse time, and then have broken the Condition, and have left to A. B. a dry Executorship.

[Page 15] Now to the third Point, one may divide his Executors power three wayes,19. H. 8. 3 [...] viz. Really, Locally,19. H. 8. Dye [...]. 4. Hill. 33. Eliz. in Com. b. or Temporally: Really thus. Hee may make A. his Executor for his plate and housholdstuffe: B. for his sheepe, and cattle, C. for his Leases and states by extent, D. for his debts due to him, and so divide the power and Administration of his Executors at his plea­sure.32. H. 8. Br [...] 115 He may divide them also, or their power Locally, viz. A. for his goods in Com. Buck. B. for those in Com. Oxon. and C. for those in Com. Berk. He may also divide them in time; viz. his wife, or any other per­son to be Executor during her life, or during the minority of his sonne, or so long as shee continues widdow, and after his sonne to be Executor. So of like limitations, or divisions, either for time, place, or things, wherewith they shall intermedle. Nay, doubtlesse one may be made Executor for one particular thing onely, as touching such a Statute, or Bond, and no more; and thereof good use may be made, as I thinke, thus. Many have Bonds, Statutes, and Recognizances, for warranty or enjoying of Land, or freeing, or saving harmelesse from incumbrances in gene­rall or particular: Now he which hath these, selling the Land, may by Letter of Attorney lawfully assigne thē to the party who buyeth the Land or Lease; but this notwithstanding, [Page 16] the interest remaines in him who selleth, and by his outlawry, they may be forfeited or by him released any Bond to the contrary not­withstanding; and if he dye, the interest in Law will be in, and goe to his Executors, and in their names; onely Sute or Execution may be had and maintained.Qu [...]e. If not As­sets in Law when obtained.

Now then, if the Vendor, besides assigne­ment make as to this Statute, Recognizance, or Obligation, onely the Vendee Executor; By this, the interest, after death of the party, will be in him actually and really to his more safety, since none but hee can release or dis­charge, nor any other name neede to be used to sue, or take benefit thereof. But Quaest. If the Vendee, his Heires and Assignes may be made Executors, so as that securitie, shall go to them one after another without renewed, making of Executors. Thus if the party make no other Executor, he dieth Intestate, as to the rest of his estate, and as to this specialty onely, shall have an Executor, and must have a Will proved: and incase he doe make ano­ther Will for his state residue; there must be two Wills proved. But in th'other case where by one onely Will, one is Executor for one part of the estate, and another for another; there being but one Will to be proved, one proving of it sufficeth. And though in the premises of a Will two be made Executors [Page 17] joyntly and equally; yet there may be a Pro­viso, 32. H. 8. Br [...]. Exec. 155. that one shall not meddle during th'others life, so as they shall be Executors successively, and not joyntly; and thus also to other purposes aforesaid, a subsequent cause or Proviso, may make the partition and divi­sion of authority. But if the Proviso or clause subsequent, be meerely contrary to the Pre­misses, it wil be void; as where two were made Executors,19. H. 8, Dy. 3. [...]. with a Proviso, or cause, that one of them should not Administer his goods. This was held voyde for repugnancy by Brud­nell and Englefield Justices. But Fitzherbert Ju­stice was of minde, that it was not voyd, nor utterly repugnant. For the other might joyne in sutes, though not Administer; and Justice Shelley was of a third opinion different frō all the rest, viz. that here was a repugnancy; but the last clause should controll the Premisses, and so this one onely should be Executor.

Who may make an Executor.

SOme persons may be unable to make Wills, and consequently Executors; for that is all one: whosoever may make a Will, may make an Executor, and he that may make an Executor may make a Will. There be nineteene severall kinds of persons unable, as the Canonests say, to make Wills, but with [Page 18] many of them we will not intermeddle, be­cause wee finde no mention of them in our Law. The persons principally, and most use­fully to be considered of by us, are either the defective in understanding, as Infants, Idiots, Lunatickes, and the like, or defective in power or interest, as women covert or mar­ried; persons out-lawed, attainted, convict, or excommunicate. Some touch we will give of others, as Aliens, Corporations, Villens, Monkes and Fryers. As for Infants and wo­men covert, because much is to be said of each of them and their Administrations, wee will forbeare to treate of them in this place; but after will doe it of each severally.

To begin with an Idiot, naturally he is not able to make a Will, [...]. Eli. [...]. 203. 204. as was resolved in the Spirituall Court, because he wants the use of Reason to conceive what it is fit for him to Will; nor doth the Common Law oppose this as I thinke.

A Lunaticke having Lucida intervalla, that is, some seasons of enjoying his right minde and freedome from his Lunacy, may in those times of his right minde make a Will, and Ex­ecutors, else not, for even one by age or sick­nesse become of non sanae memoria, is unable to dispose of Lands or goods.

One deafe and dumbe borne may make a Grant,Vide plat la Perk. 5. 6. 33. H. 8. Dy. 55. 56. Vide 26. Ed. 3. 63. lib. [...]. 396. saith Master Perk. if he have under­standing, [Page 19] which is hard, as hee confesseth, consequently much more a Will: but in the time of K. Hen. 8. it is left a demurrer,18. Ed. 3. 53. 26. Ed. 3. 63. So in effect. 44. Ass. p. 36. P. 31, Eli. Pas­catia de Foun­taines Case. whether a Deede by such, be good or not. If but mute, he may wage his Law, and atturne by signes, and so perhaps by signes declare his Will. 44. Ass. p. 36.

An Alien may make, or be an Executor, so as he be not an Alien enemy, for such cannot sue; as in the late Queenes time was held; but there the doubt was, whether a subject of Spaine were at that time to be held an enemy, no warre being proclaimed betweene the Kindomes, though hostility exercised.

As for persons Attainted, Convicted, or Out-lawed, it will be said, that these can have no goods of their owne, and consequently, they can make no Wills nor Executors; and it is not to be denied, that we finde it pleaded sometimes by Executors, that their Testators stood out-lawed. But first it is cleare, that all and every of these, may have goods as Execu­tors to others, which neither are forfeited by Attainder or outlawry, nor devested by marri­age, or Villenage. Therefore as touching them, they may make Testaments. And that all these sorts of persons may be Executors, is also evident. So also touching Villens, Monkes and Fryers, who can have no goods to their owne uses. And that one attainted of [Page 20] felony may have an Executor,33 Eliz. in Ba­ [...]eg. appeares by the Case in the late Queenes time, wherein it was long debated, whether such an Executor might maintaine a writ of Error, or not to re­verse the attainder of the Testator: And as for other Out-lawries, the Plea thereof by the Ex­ecutors, that their Testator was, and died out-lawed, proves not a nullity of the Will, or Executorship: for then they might have pleaded, that they were never Executors. But it tends to this, that no goods did, or could come to them for satisfaction of the debts by reason of out-lawry; yet it hath beene delive­red, not of old onely in many Bookes, but by some of late, that debts upon contract, where the defendant may wage his Law,2 [...]. Ass. P. 63. 49 Ed. 3. 5. 50. Ass. P. 15. are not forfeit by out-lawry,33. H. 6. 27. 9. Eliz. D. 262. Contra. Co. lib. 4. fol. 95. nor uncertaine damages for trespasse in battery, or false imprison­ment, &c. Quaer. Of breach of Covenant. But goods taken away by a trespasser,19. H. 6 47. 30. Ed. 3. 4. 16. Ed. 4. 7. 5. Ed. 3. 53. 6. H. 7. may yet be forfeited by the Attainder or out-lawrie of him from whom they were taken, for that the property in right still appertained to him, and he might have taken them againe, where­soever he found them, therefore the action for this shall not come to his Executor, but for th' other, not forfeited it may.

Whether an Excommunicated person be able to make a Will or not, [...]. H. 7. fo [...]. 7 may be some doubt since Keble denieth him abilitie to pre­sent [Page 21] to a Church,Summ. Silvest. tit. Testam. and in the very Point anti­ently the opinion of Canonists hath beene Ne­gative, but more lately grew Affirmative.

Who may be Executors;42. E. 31. [...]. more,

AN Excommunicate person cannot Sue, that is, proceede in Sute as Executor till he be absolved, there being danger of Ex­communication to all that converse with him; but this makes not a nullity of his Executor­ship, nor over throwes the Sute, but stayes it onely from proceeding untill absolution.21. H. 6. 30. A Clarke attaint may be an Exe­cutor by Past. Iust. As for persons attainted or outlawed, wee have before spoken Affirmatively in way of proofe, that they may make Executors for continua­tion of the Executorship,Pascati [...] de Foun­taine. But an A­lien enemy can­not sue as Exe­cutor. P. 31. Eli. 3. Iac. cap. 5. So of Aliens, and others before. Recusants convicted at the time of the death of any Testator are disabled to be his Executors.

Whether Corporations, Compound, or consisting of divers persons may be made Ex­ecutors or not; I doubt. First, because they can­not be Feoffees in trust to others use; second­ly, they are a body framed for a speciall pur­pose; thirdly they cannot come to prove a Will, or at least to take an oath as others doe.

What a man may give or dispose by his Will.

HAving cōsidered of the makers of executors by Will, and of them so made. Let us now [Page 22] consider what by this Will may be disposed, given,Bransby. Vers. Grantham. Ple [...]. Com. f. 5 25. or bequeathed. And first, hee, who himselfe is an Executor, cannot by his Will, give, or bequeath to any 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,Hill. 20. Eliz. 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,At any time in his life he may alter the pro­pertie. 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.So 48. E. 3. f. 14. 15. And doubtlesse he cannot effectually in Law,Where the be­quest was to one of the Execu­tors, it was held that the other Executor might [...]elease it. 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,If sufficient otherwise to pay all one, a [...] if [...]. the Executor ought to de­liver them to the party, to whom the bequest [Page 23] is,48. E. 3. p. 14. 15. 11. Ed. 3. Fitz. tit. Cond. 9. 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.Where both sta­ted joyntly by one Grant. He that is joyntly with any other estated in Lands or goods,Differences be­tweent joyn-te­nants & Tenants in Common, hol­ding by severall Grants. 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;Another kinde of Tenants in Common. 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. [Page 24] 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.Stat. Mert [...]n. cap. 2. vidua possint Lega [...]e tam de dotibus quam de aliis, &c. But as for trees growing upon the ground; these can no otherwise be given by Will, then as the Land it selfe upon which [Page 25] they grow,Qu [...]. If the trees may be devised by the Statute of Wills, with­out giving the Land it selfe. 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.Omne testamen­tum morte con­suramatur. 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,See the pleading of it by making a later Will. lib. Intra fo. 323. b. & 641▪ a. 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 [Page 26] 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, [...]. 4. Eliz. Dy. 310 b. and this manner of Revocation, by word one­ly was held sufficient, although the Will in writing were not cancelled nor defaced.M. 28. & 29. Eliz. Co, lib. 4, f. 60. 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 [Page 27] 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 Will, hereby it is implyed that another who hath freedome of Will may by Word sufficiently revoke a Will in writing; and so was it since also admitted in the Case between Sir Edward Mountague and Ieoffryes, 7. H. 6. fol. 13. M. 38. 39. Eliz. touching the Will of Sir Io. Ieoffryes, but there a diffe­rence was conceived betwixt saying, I will re­voke my Will, which only expressed a purpose or intent, & therfore was no present Revocation; and saying I doe revoke it, or it shall not stand, or my heire shall have my Land, which crossed the gift of it by the Will. And as Wils may be wholly or in part revoked so may also the executorship of one or more of the Execu­tors, and yet the Will may stand in all the o­ther parts, so as there be any one Executor or more unrevoked: but if all be revoked, then the whole Will is revoked, because no Will can stand without Executors: and this Revocati­on may be by Word onely, without being expressed in the Will or any other writing. But I would wish all to expresse such revoca­tion in the foote of the Will, or that the name or names of the Executor or Executors so re­voked be expunged or blotted out of the Wil, and that this be done in the presence of some witnesses to testifie the act and intent of the Testator.

[Page 28] Againe, Revocations may be by act in Law as well as in fact, or by direct and expresse termes, as in the said Case of Mountague and Ieoffryes, where Land being devised by Will, and the Devisor after making a feoffement, though there were some defect in the Livery,Vide 6. F. 6. Dy. 74▪ & 3, & 47. & Ma. 43, a. to make it effectuall, or if he made a bargaine and sale, that was never inrolled or granted the reversion, but no atturnement had, so as the Land passed not, yet in all these Cases the Will or gift of Land stood revoked: But in Case he had onely Covenanted that he would have made such an estate, and not done it, this was held to bee no Revocation. And so by some, in case he doe but make a Lease, leaving the Fee simple, as it was, but of this Quare; And if a difference may not be betwixt making a Lease for yeares, and a Lease for life, which altereth the Freehold. If a Lease for twenty yeares be bequeathed to I. S. and after the Te­stator, maketh a Lease for fifteene yeares, re­serving a Rent, I take this to be no Revocati­on of the bequest; but if the Testator after this Will made, take a new Lease for a longer terme, so as the former Lease is surrendred in fact or in Law, this must needes be a Revo­cation of the bequest, or at least an adnullati­on thereof. and that although the bequest: were generally of his Lease, not mentioning the number of yeares; for this which he now [Page 29] hath, is another Lease, and not that which he had at the time of the making of the Will. So, if one give his blacke gelding by Will, and after, before his death, he selleth or giveth a­way that Horse, and buyeth another blacke one, this new gotten Horse shall not passe by the Will, because it was not the Testators, at the time of making his Will. So also, if the Crop in the Barne be bequeathed in October, and the party lives till that time twelve month, having sold that Crop and Inned a new, this later Crop shall not passe by the Will, and the former cannot.

Againe, as revocation may be by alteration of the State of the Devisor, in the Land De­vised; so may it also be by alteration, in some case of the state or quality of the person of the Devisor. As if a woman sole make a Will, and after take a Husband, this without any more, as is resolved in the said case of Forse, and Hembling, doth worke a Revocation, or adnul­lation of the Will, for that else it should be irrevocable, since shee having lost the free­dome of her Will, cannot actually and directly make a Revocation, as we before have shewed. But notwithstanding her Will be revoked, yet in case her Husband before or after marriage, with her were bound or Covenanted, to per­forme this womans Will, if he so doe not, by payment of the legacies therein bequeathed, his [Page 30] Bond or Covenant stand good, and be sutable against him,M. 25. 26. Eliz. as was adjudged touching the Will of Elizabeth Smaleman, marryed after her Will made to one Wood. Who first was bound to performe it: yet another case there is of Alteration in the state of the Testators per­son, which makes no Revocation of his Will. As if he being of sound minde and ability, make a Will, and after becommeth franticke. In this case this is no Revoction. So as his Will stands till his death irrevocable, if he re­cover not. Now of a Will Revoked, there may be a reviver by a new Publication, and therof now.

Of new Publications.

HAving shewed how a Will may be revo­ked, and so lose its force; let us now see how without making a new Will, that so re­voked may be revived,M. 38. 39, Eliz. in ba. reg▪ and set on foote againe. And that is divers wayes: as, First, by a Co­dicell annexed after thereunto, as was resolved betweene Betford, and Barnecot, in the Kings Bench. Secondly, by adding any thing to the Will, or making a new Executor, &c. Thirdly, by expresse speech or word, that it should stand or be his Will; as I conceive, to have beene the better opinion in the said case of Mountague and Ieoffryes, wherein yet was [Page 31] much difference of opinion, both touching Revocation and new Publication. If a man having made a former Will,44. Ass. p. 36▪ doe make a latter which is more than a bare Revocation; yet if afterward lying upon his death-bed, and speechlesse, both these Wills be delivered into his hand, and he required to deliver to one of his friends about him, that Will which he would have to stand, and to keepe in his hands th'other; he thereupon delivereth to the Minister or other his neighbours, the first made Will, retaining in his hands the latter, as was done in the time of Edward the third. Here the former Will,44, Ed. 3. [...]ols 33. though made voyde many yeares before, by the latter, is revived, and shall stand as the Parties Will. But now put the case that a Bequest at the first is voyde, yet by Publication after, it may be made good, as if one give to Sar. his wife, a peece of Plate or other thing, and hath no such Wife at the time, but after marryeth one of that name, and then publisheth his Will againe; now this shall bee a good Bequest. So if one Devise Lands or Goods, which one hath not; If he after doe purchase the same, and then say that his Will before made shall stand, or be his Will. It shall be a good Will and Bequest, for this is in effect a new making.3. &. 4. P. M. Dy. 143. And though most of the precedent cases, be of Revocation of particular parts of the Will, and not of the [Page 32] totall: Yet first, be it considered that, that part so revoked was in effect the substance of the Will: Next, it is easily discerned that if one part be revocable, so is another also; And thus Revocation may spread it selfe over the whole; nay, doubtlesse the whole, Vno flatu, may be revoked, as well as by parts, even as a fagot may be put wholly into the fire, as well as sticke by sticke. And as the Velleities or dis­posing parts of the Will, are revocable and re­vivable by new Publication as aforesaid, so is also the constitution of Executors. As if one of the Executors names be stricken out, and afterwards a stet. be written over his head by the Testator, or by his appointment, now is he a revived Executor. So if the Testator expresse by word, in the presence of Witnesses that the party put out shall yet be Executor; but now I meane, where the Executors name is not so blotted out, but that it may be read and discerned; for else the stet is upon nothing, and if the Verball reaffirmance should renue his Executorship, then must the Will be partly in writing, and partly Nuncupative, his name not being to be found in the written Will.

Of the State of things instantly upon the Testators Death, before any Will proved.

Here we will consider these severall things.
  • 1. What is wrought by a gift of a thing certaine and knowne, as the White Horse, the Red Cow, &c.
  • 2. What by a Bequest to an Executor.
  • 3. What wrought by a Release in the Will, to a Debtor.
  • 4. What by making a Debtor, or Creditor, an Executor.

AS touching the first, viz. the be­quest of a Chattell reall, or person­all, which the Testator had in pos­session, notwithstanding that, if the said Testator had by his Deede or writing, or but by word in his death-bed, or before gi­ven these his goods,1 & 2. P. & Ma. Dy. 110. a. & 139. b. vide Co. [...]. f. 95, & 96. and dyed before they had beene taken, he to whom they so were gi­ven, might have taken them; yet in this case of gift by Will, neither can the Legatee, viz. he to whom they are bequeathed, either take [Page 34] them, or recover them from the Executor, or a stranger taking them; by any Suite at the Law for that he hath no property in them;Of the second. See Co. 10. f. 47. 65 [...]. yea if the Bequest be to himselfe,So resolved pas. T [...]. 37. Eli in b. a. M. onely [...]aw. [...]ntr. Port­man. pl. & Simes de [...]. who is made Executor, be it of Lease, Plate, Cattell, &c. They shall not vest nor settle in him as Legate, but as Executor, untill expresse, or implyed election,See more of this Tit. Legacy: and of the assent of one Executor onely. but made to have and take the same by way of Legacy. And the reason in both case is this, viz. That the Lawe preferres, debts, and the satisfaction of them before Le­gacies, and ties Executors also to that rule, and therefore will transferre nothing from or out of the Executor, till he having considered of the State of the debts to be paid, and goods out of which the same are to be paid, shall finde that safely this or that legacy may take effect without making any defect in payment of debts, or drawing upon him and his owne goods any damage or losse as a waster: and thereupon shall assent to such Legacy. Thus now is the Law taken; but heretofore some opinion hath runne otherwise, viz. That hee to whom any Bequest was made of a thing knowne and certaine,27. H. 6. 8. might take it without any assent of the Executor:Of late perhaps some single or suddaine opini­ons may also have runne that way, but in Port­mans case the point was divers [...]unes argued, and then adjud­ged as before. and that when to the Executor himselfe any good or Chattell moveable or immoveable was bequeathed. In case there were otherwise sufficient goods, for satisfaction of debts, the same should in­stantly [Page 35] upon the Testators death, without any act or election, by the Executor be transfer­red into, and unto him in his owne right, as a Legacy, and not remaine in him as Executor. As for summes of money bequeathed,To be bought. or so much in Plate, or Ringes, it is evident that they must be had by the delivery of the Exe­cutor: Yet hath the Legate such an interest before delivery, as that dying before payment it will goe to his Executors. But as I take it, no such to whom any thing certaine is gi­ven by Will, can make any gift or grant of it, before the Executor have assented to his ha­ving thereof;Quae. of this see more after Tit. Legacy, there­about. Nor perhaps will the Execu­tors assent, after the grant have such relation, as to make good the grant precedent; why so, yet? more then an atturnement of a Leassee, which is alike assent to the grant of another? And Quere if by the out-lawry of the Legatee, before the Executors assent, this thing bequea­thed be forfeited.

If without just cause an Executor will refuse to assent he is compellable by Law Spirituall or Court of Conscience, yet if Spirituall Court presse to doe where is just cause to stay, a Prohibit. lyeth, ut Credo, for since executors stand liable to recovery of debts against them by Common Law. It is reason that Law en­able them to keepe wherewith to pay. And here yet note some seeming opposition in Law [Page 36] for where before great difference was shewed betweene a Devise or Bequest, and a gift or alienation executed in ones life time; Yet the Lord Deyar reports it to be resolved, that where a Lease for yeares was made upon condition, that the Lessee should not Aliene in his life time, that yet a Bequest of this Lease by his Will, was a breach of the Condition as being an alienation in his life time.

3. Of a discharge by Will to a debtor some question may be whether to perfect and make good this, so as the debtor may plead it in Barre, there be not requisite, as in the former, an assent of the Executor. On the one side, since this giving is a forgiving, for he to whom it is bequeathed, cannot otherwise have it, then by way of retainer, it may probably be said, that here needes no such assent of the Execu­tors, as in the case where any thing is to be transferred; for here is rather an extinguish­ment, and an exoneration then a passage of a Chattell by way of Donation: On the other side it is probable that it being but a Bequest, and so a Legacy, since debts are in Law and Conscience, to be satisfyed before any Lega­cyes, that therefore the Executor having not sufficient otherwise to satisfie his Testators debts, may sue for this debt, and refuse to suf­fer it to passe away as a Legacy. And to this [Page 37] opinion doe I encline, as best for Creditors; and satisfaction of debts is by Law respected as an act greatly concerning the Testators soule. But some will perhaps make a contrary doubt, that although there be an assent of the Executors to this discharge, yet it will not a­mount to a legall release, for that a debt, at least,Not de esse, but de bene esse. if it be by speciallty, cannot be released but by Deede, and a Will is no Deede, for a Seale is not necessary thereunto, though it be fit and convenient; whereto I give this answer, that a Will though it be not properly and le­gally a Deede, for it may be good enough without a Seale, which is an essentiall part of a Deede, yet hath it the force and effect of a Deede: for as a Release cannot be made but by Deede, so neither can an Estate or Interest though but for yeares in Tithes, Advow­sons, Commons, Faires, and like things be granted or assigned otherwise then by Deede, yet it is cleare, that such a state for yeares in any of these may be given by Will, as well as a Lease of Land, which proves a will to have the force and effect of a Deede.

Of making a Debtor or Creditor, Executor, and first of the Debtor made Executor.

SUppose we then that A. and B. being made Executors, the Testator was indebted to [Page 38] A. twenty pounds, and B. was indebted to the Testator twenty pounds, how doe things stand presently upon death.21. H. 7. 31. Plow. Com. 185. cont. Danby & Choke. 8. E. 4. 3. And may be granted that he should account before the Or­dinary for it. First, it is cleere, that the debt of B. to the Testator stands in Law extinct, this making of him Executor, being a Release in Law. Therfore let Debtees, take heed of making their debters Executors: And yet doubtlesse me thinkes suh a debter made Executor should hold himselfe restrai­ned in Conscience, from taking benefit there­of,Yea it seemes Plowd. 186. a. the Law was ta­ken to be as su­pra. 8. E. 4. if (the debt remitted) there shall want to satisfie either debt or Legacie of the Testa­tor: and I doubt whether a Court of Con­science may not justly so order; the Testa­tor, being perhaps ignorant of this point in Law, that this debt should be released by ma­king the Debtor Executor.Though he ne­ver administer. 21. E. 4. 3. 81. 11 H. 6. 38. And what is spo­ken of making the debtor Executor, general­ly the same is to be understood of making any one of the debtors Executor,2. R. 3 [...] 20. par Starkey & 22. per Vavaser. where there be many joynt debtors: and so also where many Executors be made, and but one of them is debtor to the Testator, for they cannot sue without making him who is the debtor, also a plaintiffe,9. H. 5. 13. Left a demurrer in tre­spasse by all, a­gainst the Exe­cutor, who was trespassor. which hee cannot doe against himselfe. The like Law touching Actions of trespasse or account: Yet of old, where one made his Bayley one of his Executors, to­gether with A. and B. who brought an action of Account against the Bayley, in their two [Page 39] names onely; Justice Herle held the action well brought:3. E. 3. 23. This was in the beginning of King Edward the third his time; but the con­trary hath beene since resolved,6. N. 4. 3. 8. E. 4. 3. Choke. some also have held, that though in the life of this Executor, who was a debtor,21. H. 7. 31. 20. E. 4. 17. he could not be Sued, yet after his death, the surviving Executors might sue his Executor:21. E. 4. 3. 61. Plowd. com. 36▪ but that cannot be, as I take it, for that the debt was utterly extinct, by the making of him Executor; as if the Testa­tor had released it to him,Plowd. com. 185. yea, though this Executor dyed before he did ever Administer or prove the Will. And like extinguishment of the debt,11. H. 4. f. 83. 84. if the Creditor marry with one of the Executors of the debtor, yet was there an Action of debt maintained temp. Edward 3. By the Husband and Wife,31. E, 3. Fitz. Ex. 82▪ against the Hus­band, and other Executors upon an Obligati­on by the Testator to the Wife, before her marriage. But if a debtor take Administra­tion of the goods of his Creditor, this mee thinkes should not discharge him, but that his debt should stand as assetts in his hand be­cause the intestate did no act to free him from the debt.

The Debtor or Creditor made Executor.

THis making of the Debtee Executor, and so the party who both should pay and be [Page 40] payed, the debt giveth him clearely power to pay himselfe before any other, if his debt be by Specialty or upon Record.Plow. co [...]. 185. By all the Jud­ges, but Breake Cheefe Just. Plowd. 185. b. Where the goods be of more va­lue, which shall be so altered? Nay, some have held that so much of the goods of the Testator shall be altered in property out of the Executor, as Executor, into him as Creditor, but how that can be, I cannot see: For whe­ther shall it be satisfyed out of the Lease and Chattells reall, or personall, whether out of the Corne in the Barnes,See Plow. com. 544. the like of a Legacy of twenty pound given to the Executor. Cattell in the Fields, Plate or Housholdstuffe; this till some ele­ction made by this Debtee Executor, cannot be knowne, nor shall be effected by any ope­ration of Law, preventing the Executors e­lection, in taking his satisfaction, where and how he will. For certainely, as an Executor hath election to pay, which Creditor he will first, so hath he election to pay and satisfie himselfe,Or if the goods amount in all to no more then this debt, by what part of the Testators goods he will, yet perhaps if there be ready money in the Executors hands, there shall be an altera­tion of the property of so much thereof as was owing by the Testator to the Executor. And if there come not to the hands of such Execu­tor,See Plow. com. 185. 13. H. 8. 15. 11. H. 4. 83. 12. H. 4. 21. 20. E. 4. 17. 21. E. 4. 3. sufficient to pay himselfe, he may have an Action of debt against th'other Executor, or the Heire, as by some hath beene concei­ved: yet let it be well advised of, whether, if he doe Administer at all, and specially, if he pay himselfe any part, he have not thereby bar­red [Page 41] or disabled his Suite for the Residue. But if he refuse to Administer at all,Plowd▪ 184. b. & 185. b. He is barred for he cannot appo [...] on his debt. it were very unreasonable that he should not be able to sue the other Executors, for so a Debtor might by subtilty make his Creditor an Executor with others, and take a course that his goods should come onely into the hands of those others, so as the Debtor could not pay himselfe; and consequently, if he could not sue the other Ex­ecutors, he should thus be stripped of his debt by a sleight. Quaere, if he may bring the acti­on in the name of the other Executors, onely the Will being proved in his name, as well as in the names of the rest, or whether the Acti­on shall be brought in his name also, and then he be severed at his owne prayer. But against the Heire there is none to joyne with him,12. H. 4, 21. He may sue the Heire if the Heire bound, and he have not sufficient goods as Executor. and him may he sue, if he have not Administred as Executor; this admitted, that the Bond ex­tend to the Heire, which without expresse words it doth not, though for the Executor it be otherwise.

Thus having considered of the State of things before and without any Will proved or other act done by Executors: wee should now come to the point of proofe, but two things, pertinent to it, are in Order precedent.

  • [Page 42]1. What may be done by or to an Executor before proving of the Will.
  • 2. Of Refusall, and the things incident there­unto.

Before probate, what may be done by or to Executors.

AS to this it is cleare, that before proving of a Will by the Executor, he may seise and take into his hands any of the goods of the Testator, yea enter into the house of the Heire if not locked so to doe, and to take the speci­alties of debts and generally he may doe all things,9. E. 4. f. 33. 47. 7. H. 4. 18. which to the Office of an Executor pertaineth (except onely bringing of Actions and Prosecution of Suites.)They cannot sue till they have the Will under the seale of the Ordinary. He may pay debts receive debts, make acquittances and Relea­ses of debts due to the Testator, and take Lea­ses or acquittances of debts owing by the Te­stator: Yea, if before such proving, the day incurre for payment, upon bond made by or to the Testator, payment must be made to or by this Executor, though no Will be proved up­on like payne of forfeiture, as if the Will were proved. Also an Executor may before Pro­bate, sell or give away any of the goods or Chattells of the Testator. And whereas the assent of an Executor, is necessary to the set­ling and Execution of a Legacy, as before hath [Page 43] beene shewed. So as if one give me his white Horse, or blacke Cow, by Will, or any other well knowne thing, I cannot after his death take it,Wr [...]y. 23. Eliz. though I come where it is, but am punishable by action of trespasse, at the Exe­cutors suite, if he doe not assent; yet an Exe­cutor before the Will proved, may give this assent, and it will stand good. Yea, although he dye after any of these acts done, the Will being never proved by him, yet doe these Acts so done, stand firme and good, as I take it. Yet (as I finde) an Executor, making his Will, and dying before he had proved the Will of his Testator: his Executor may not prove both the Wills, and so become Execu­tor to both the Testators.22▪ & 23. Eliz. Dy. 372. But in case the goods were, after debts paid, bequeathed to the Executor, his Executor may take Admini­stration of the first Testators goods, with the Will annexed, as by Doctor Drury, was in the late Queenes time declared to be the Law and course of the Court Spirituall, to which credit was given by the Judges of our Law, and the Court of Star-Chamber: for though the Booke doe not mention it to have beene in Star-Chamber, it is elsewhere so reported: Yea an Executor, for goods of the Testator taken from him,Dy. in Plow com. 281. Case of Gr [...]brooke & Foxe. or a trespasse done upon the Lease Land, or a Distrayning, or Impounding of goods or Cattell, may mainetaine before the [Page 44] Will be proved, Actions of Trespasse, or re­plevin or de [...]nue, for these Actions arise upon the Executors owne possession. But before the proving of a Will, an Executor cannot m [...]inetaine a suite or action of debt or the like. And the reason is, for that therein hee must shew forth the Will proved, under the seale of the Ordinary. And so, as I take it, must it be, if he bring any Action for trespasse done, or goods taken in the Testators life time, so as the Testator himselfe was intitled to the Action, and it growes not upon the Executors possession.34. P. & Ma. Dy▪ 135. a. I finde that an Executor granting the next avoydance of a Church which to him came from the Testator; the Grantee maine­tained a Quare impedit, without shewing forth the Will:Dy. in Plow. com. 281. a. But the Executor himselfe might so have done, as of his owne possession before the Will proved, and so without shewing it under the seale of the Spirituall Court, as well as Actions of Trespasse, or Replevin, for goods taken after the death of the Testator: yet in the Principall case of Greysbrooke and Foxe, which was an Action of Detinue by the Executor, for goods taken or detained after the Testators death,Plow. com. 275. b. the Plaintiffe did shew forth the Will proved. But that proves not any necessity thereof, or that if the Will had not beene pro­ved, it could be no hurt to shew it forth, so upon his own contract for the Testators goods [Page 45] as if the Executor sell Cattell or other goods of the Testator, before the Will proved, hee may for the money payable, mainetaine an action of debt, before he have proved any Wil: and in this and the action of Trespasse, there is no necessity of naming him Executor. Also on th'other side, an Executor may well enough be sued for debts of the Testator, before the Will be proved; for he may not by his owne Act of delaying the Probate of the Will, keepe off Suites, except he will refuse in due manner, that so Administration being granted, there may be some body Suable by the Testators Creditors, for debts by him oweing. And the usuall plea of the Defendant, to estrange himselfe from the Testament, is to say that he neither is Executor, nor hath Administred as Executor. So as if he either be Executor De jure, or De facto, by his owne act of Admini­string it sufficeth.

Of refusall to prove the Will, and therein of Administration, forecluding refusall.

NOw touching this other point, fit to be thought of, before wee meddle with the Probate, viz, Refusall to prove, we will there­about consider these severall parts, viz. First how, and in what manner refusall may or must be. Secondly, in what Cases, or in respect [Page 46] of what acts one named Executor hath lost or determined his election of refusall or accep­tance. Thirdly, of what effect and operation the refusall is, what difference, where all the Executors refuse, and where but some or one of them. Fourthly, what relation it hath.

Now touching the first;3. He. 7. 14. the Ordinary, be­fore committing Administration where a Will is made, and Executors named, if hee know of it,9. Ed. 4. 47. must send out Proces against the Executors,3. He. 7. 14. to come in and prove it, and if they doe not come,Plow. com. 281. they are to be excommu­nicate; but if they doe come, if they nor any of them will prove, by reason of such refusall, the Ordinary may commit Administration; perhaps also they may be appointed Executors at a time future, and not presently. Now re­fusall cannot be verbally, or by word, but it must be by some act entred or recorded in the Spirituall Court,9. Ed. 4. 33. See Plow. 184. a. I [...] Dettee made Executor, sue the Ordinary for the debt; this a­mounts to a re­fusall of the Executorship. and therefore must be done before some Judge Spirituall, and not before Neighbours in the Country; for that is not effectuall. Yet Sir Ralph Rowlett; making the Lord Keeper Bacon, Catlin, Chiefe Justice, and the Master of the Rolles, Executors, they wrote a Letter to the Ordinary, that they could not attend the Executorship, and there­fore wished him to commit Administration, who did so; making every of their Refusall, and this was held good: So as a Lease being [Page 47] by that will bequeathed to Catlin, and he after this refusall entring and assigning it to one, and the Administrator, assigning it to another, it came in question betweene them whether had best right,M. 28 & 29. Eli. Inter Brooker & Carter. in Ba. com. and Judgement was given for the assignee of the Administrator against Catlins assignee, whereas, if the Refusall had beene void, Catlin had continued Executor, and so his title had beene better. First, in case the Ordinary himselfe,9. Ed. 4. 33. The Booke calls him Cardinall of Canterbury. be made Executor, there saith the Booke hee may refuse before his Commissary, and so was it there pleaded for the Arch-Bishop of Canterbury, who was made Executor to Sir William Oldhalle.

What shall be such a medling or Administring by an Executor that he cannot refuse after.

AS to the second,9. Ed. 4. 47. Sel­ling Land as Executor is Ad­min. where an Executor hath Administred, he cannot▪ afterwards re­fuse,Dye [...] in Case of Greisbrooke & Foxe. Plow. com. 280. b. because he hath already accepted of the Executorship, and so determined his election: at least the Ordinary ought not to accept of such refusall, but should compell him to take upon him the Executorship, as the Law was taken both in the time of Ed. 4. and of Queen Elizabeth: Pas. 7. Eliz▪ Yet if the Ordinary doe admit one to refuse, notwithstanding that he have Admi­nistred: this standeth good, as it seemeth, conceived by the Judges in the time of Hen. 6.36. H [...]n. 6. f. 7. 8. [Page 48] for there the Executor commanded one to take goods of the Testator, out of the hands of I. S. who did accordingly; and afterward the Executor refused before the Ordinary, and Ad­ministration was committed to the said I. S. who brought an action of trespasse against the party so taking the goods from him, and there the refusall and committing administration were admitted to be good: so perhaps Factum Valet quod fieri non debuit. And it well may be that the Ordinary did not know of the Execu­tors, such intermedling at the time when he did admit of his refusall. After Refusall and Administration committed, the Executor cannot goe backe to prove the Will, and as­sume the Executorship: but if onely upon the Executors making default to come in upon Proces, to prove the Will, the Administration be committed, here the Executor may yet at any time after come and prove the Will,Mic [...]. 27. 28. Eliz▪ and so undoe the Administration: as was in the late Queenes time resolved, betweene Bale and Baxter.

But what if after refusall, it shall appeare to the Ordinary, that the Executor had admini­stred before his refusall, so as had it beene then knowne, the Ordinary should not have admit­ted him to refuse. Whether now may he re­voke his administration, (for it is revokeable) and inforce the Executor to proceed to proving [Page 49] of the Will. And surely me thinkes hee may, for that the Executor by Administring, [...] Case, in com▪ [...] A. being Executor did ad­min [...]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 [...]ust. [...] ad Ox [...]n▪ in aestat. 1. Car [...]l. reg. had determined his election, and accepted the of­fice of Executorship; now he cannot both ex­cept and refuse. Besides, we know that Cre­ditors may maintaine their Sutes against him, having once Administred, the Com­mon Plea to free himselfe, and shew that hee is not the party suable for the Testators debt, being that he neither is Executor, nor ever did Administer as Executor, wherefore hee having administred, it will be found a­gainst him. Now it is not congruous, that in the Spirituall Court there should be no Exe­cutor, and yet in the Courts of Westminster there should be an Executor. But since this Point of Administring is so materiall to the Point of being admitted, or not admitted to refuse; we will here consider in this place, briefly, what shall be said to be an Administra­tion by an Executor,36. Hen. 6. 7. determining his electi­on, and disabling his refusall, and what not. 1. Some will perhaps conceive, that the act of the Executor in the fore-mentioned Case, where he onely commanded I. S. to take goods of the Testators out of a strangers hands, was no Administration: and it is true, that in that Booke it is passed in silence, and not expresly said to be an Administration.

But the Lord Dyer in the Case of Gr [...]is­brooke, and Foxe, speaking of that Case, saith [Page 50] expresly, that the Ordinary might there have rejected the Executors refusall; for saith he, when the Executor had once intermedled; he should not have beene suffered to refuse; so as he doth clearely admit that to have beene an Administration.20 [...] 4▪ 17. and 21. [...]. 4▪ 5. And else where it is held, that if an Executor take goods of the Testa­tor, and convert them to his owne use; this is an Administrati [...]n; yea, if hee doe but take them into his hands, say some, without con­verting of them: If the wife take more appar­rell of her owne than is necessary,21. Ed. 4. 5. this is an Administration,21. H. 6. 19. 20. as the Booke admits; but if by the assent,33. H. 6. 31. 8. or delivery of the Executor, it is not. More clearely, If one doe either pay debts of the Testator,1. Eliz. Dy. 166. or receive debts,13. Ed. 3. Ex [...]c. 91. or make acquittances for them,3. 4. Ma. Dy. 135▪ or demand the Testators debts as Executor;26. H. 8. 7. 8. or give away goods which were the Testators,20. H. 7. Kelw. 63. or deliver money of the Testators for Fees about pro­ving the Will: all these be full and cleare Ad­ministrations as Executor.21. Ed. 4. 5. But saith F [...]tzherb. if he onely lay out his owne money for Fees,20. H▪ 7▪ f. 5. a. this is no Administration, so saith Fr [...]wicke, if he pay debts with his owne money; and if he doe it about the Funeralls. But some diffe­rence may be betweene Acts done by one, named Executor, and by a stranger, viz. to make him an Executor of his owne wrong, whereof wee shall speake after, not in this [Page 51] place.9. Ed. 4. 12. 13. If one being sued as Executor,33. H. 6. 31. 4. take it upon him, and plead in Barre as an Executor, this is an Administration.

Of the force and effect of refusall.

AS to the third Point, viz. the force or effect of Refusall. First, it is cleare, that if there be but one Executor, and he doe re­fuse, or being many, if they doe all refuse, then is the party dead Intestate, and Admi­nistration is to be committed with the Will annexed, as is before said; nor can any after meddle as Executors. But in case there be divers Executors, viz. A. B and C. and A. onely refuseth, and the Will is proved by the others, there A. continueth an Executor, not­withstanding his refusall,Cooke, lib▪ 5. f. 2 [...]. so as he still may re­lease debts of the Testator;Cont. 18. E. 2. Bre. 8 [...]7. and debts owing by the Testator may be released to him; yea if Sute be to be had,22. Ed. 3. 19. by, or against the Exe­cutors,15. Ed. 3. Exec. 8. it shall not be in the name of B. and C. onely;41. Ed. 3. fol. [...]. but A. also must be named as a Plain­tiffe,21. Ed. 4. f [...]l. 24. or Defendant, else the Action may be overthrowne. For the Will being proved, all the Executors therein named, stand and con­tinue Executors; notwithstanding any of their refusall, as it was resolved in the later end of the late Queenes time, according to divers former resolutions. And therefore this Executor [Page 52] which hath refused, may afterwards Admini­ster at his pleasure, and intermeddle with the goods,42. Eliz. Co. 9. f. 36▪ 37. as well as the others: yet saith Brooke Chiefe Justice, after the death of his Compa­nion, he cannot so doe, but then the Executor of him who proved,4 & 5. [...]. & Ma. Dy. [...] 69 [...] [...] 2 [...]. [...]. [...]. 4. 23. 24. is onely to Administer, Quod non est L [...]x. There may be some dif­ference betweene Sutes by Executors, and Sutes against Executors; for when themselves sue, they being privy to the Will, and having the Custody of it, must bring their Action in the name of all the Executors according to the Will; but he that is to bring an Action a­gainst them neede not perhaps take notice of more Executors, than those that have proved the Will, or otherwise doe Admi [...]ister: for it is no good plea for themselves in an Action against them, to say there is another Executor, without saying also that he hath Administred, as it seemeth by divers Bookes. Nay one Booke in the time of Henry 8. goeth further, viz. that if Sute be brought against all, yet one of them not intermedling with the pro­ving of the Will, may pleade that he was ne­ver Executor, nor Administred as Executor. By this it should seeme,33. Hen▪ 6. 38. a. [...]. 9. 37. 6. that Executors re­fusing (I meane all of them,32. Hen. [...]. [...]25. so as no Will is proved) they in an Action against them,27. Hen. 8. 11. [...] cur [...]am. may say, that they were never Executors; but me thinkes they should not so pleade, but shew [Page 53] the speciall matter, as was done in the time of Edward the Fourth.

As for Relation,9. Ed. 4. 33. Co. 9. fol. 36. I will forbeare to speake, till I come to proving, for that Probate, and Refusall stand in the same state, as touching Relation.

Of proving Wills.

NOw let us see touching the Probate of Wills, what is considerable; and there­in of these three or foure parts;

  • 1. Where, and before whom, and how the proofe must be.
  • 2. What shall be Bona notabilia, to intitle to Probate.
  • 3. What force or validity, either a right, or erroneous Probate hath.
  • 4. What relation either Probate or Re [...]usall hath.

As touching the first Point, viz. How, and where, and before whom Wills are to be proved, briefely thus;

The proving is in the Spirituall Court: yet in some Manors by Prescription, Wills are to be proved before the Steward, though no Lands thereby passe, as appeares by divers Bookes: and in the Manor of Maunsfield is this Prescription;2. R. 3. Fitzh. 4. Co. lib. 9. fol. 43. and in others whereof Tre­maile, was Steward in King Richard the third his time, as he declared, and the like. I may [Page 54] tell of my owne knowledge, touching the Manors of Cowl [...]y and Cave [...]sham in the Coun­ty of Oxford, where I have kept the Courts for the Lord Vicount Wallingford, and found it in present and frequent use.11. H. 7. 12. And it is said by the Judges, in the time of King Henry 7. that this proving of Wills in the Court Spi­rituall, is not ancient but of later time. Yea it is acknowledged by Linwood the Deane of the Arches, that it pertaines not to the Spirituall Court of Common right; nor is so in use in other Kingdomes.Flow. Co [...]. 279. The reason why the Law of England hath herein given way to the Or­dinary, and Court Spirituall, is said by Walsh in Greisbrooke & Foxes Case, to be the pietie and integritie which is presumed to be in those of that Function, having charge of soules. In­deede they are, as it seemes to me, Executors of the New Testament; or last Will and Te­stament of Iesus Christ; wherby great Legacies and Gifts are given to men, & by Pastors to be dispensed & distributed: of which distributers, it is required, as S. Paul saith, That they be found faithfull. 1 Cor. 4. 2. And happy are they who with him can pleade,Acts 20. 27. Plenè Administavit, viz. that they have fully Administred, as he did; much depending thereupon, viz. Gods honour, the blessing, prosperity, & safety of the Country, the Pietie, Justice, Conscience, Contentati­on and Salvation of men. As for Wills pro­ved [Page 55] in London, and Oxford, before the Major, that is onely in respect of the Burgages within those places devisable, but they were to be proved also before the Ordinaries, in respect of the goods, and there onely where no Lands bequeathed.

The proving then is to be before the Ordi­nary Generall, particular, or speciall. By Ge­nerall, I meane the Metropolitane or Arch­b [...]shop, Vide [...]ol. proxim. If Bona Notab [...] both in Canterb. and Yorke. before whom it is to be proved; in case the Testator have goods valuable, called Bona notabilia in divers Diocesses, whereof he is Superior.

Of Bona Notabilia.

VVHat shall be said to be Bona Notabi­lia is considerable, for there about hath beene much diversitie of opinion: Some holding, that they must be of fortie shillings value; some five pound, some tenne pound; yea some, that the value of a penny sufficeth to draw it to the Archbishop, from the par­ticular Bishop. But that difference of opini­on I conceive to be now cleared,Canon 92, 93. by a Canon made in the first yeare of his Majesties Raigne, at a Convocation then held, whereby it is established, that five pound shall be the summe, or value of Bona Notabilia; yet there­in is this Prov [...]so, that where by Composition [Page 56] or Custome in any Diocesses, Bona Notabilia are rated at any greater summe; the same shall continue not altered. It is likewise there­by provided, that if any man die in Itinere▪ viz. in his journey or travell, the goods which he then hath about him, shall not cause that Administration shall be committed, or the Will proved before the Metropolitane.

Having considered of the value: now ano­ther Point observable, is, what things shall be said, to be Bona Notabilia. And as to that debts owing to the Testator, are Bona Notabi­lia, as well as goods in possession; their value being answerable; yet I thinke, if the Penall summe of the Bond be but five pound for pay­ment of a lesse summe, although the Bond be forfeited; yet in the Spirituall Court, where respect to Conscience, suppresseth the favou­ring of Executors; this will not be taken to be Bona Notabilia, viz. of five pound value, although in Law, the whole penall summe be a dutie. But if the debt be five pound or more, though it be desperate or due from the King, against whom no Sute can be, but only by peti­tion; yet will this stand for, & as Bona Notabi­lia, as I take it in the Court Spirituall, though thereabout I can but cōjecture since the Rules of our Law determine it not. And this Point touching the Kings being debtor, [...]1 Eliz. I finde de­bated in the late Queenes time, but not resol­ved, [Page 57] so farre as I finde, but there Popham at the barre urged, that no debt should be Bona Notabilia; and if it should, yet not such, for which no remedy by Sute, as in that Case, the Queene being debtor. Yet a further Question Locall, is touching these debts, or things in A­ctiō,Goods conside­rable or [...]. in what place or Diocesse, they shal be said to be, as Bona Notab. viz. whether in the place where the debtors be, or where the Obligati­on, or other specialties be. And as to this, the Law hath bin taken, that because the persons of the debtors be moveable, passant, and tran­sitorie; therfore these debts shall be said to be, and to make Bona Notabilia, where the Bonds, or other Specialties be, and not where the deb­tors inhabit and dwell: and so was it not long since conceived by Justice Walmesly, Hil. 37. Eliz. M. Com [...]. Da. Vide 13. & 14. Eliz. Dy. 305. and Ju­stice Beaumont in one Pretimans Case, no o­ther contradicting it. Herein therefore many are mistaken, who only in respect that the per­sons of the debtors do dwell in forraine Dio­cesses, other then the places of the death of the Testator, or where his other goods were, doe take Administration in the prerogative Court, though the Specialties remained, where the party died, or his goods residue, were. But in case the debts be onely by Contract without Specialtie, then indeede they are to be estee­med Bona Notabilia, there, and in that place, where the debtor is as the said Judges well [Page 58] ceived the difference. But in case Land be gi­ven to Executors, for payment of Debts or Legacies, this shall not be Bona Notabilia, as I take it, though it be Assets.

Of the validity, and invalid [...]ty of Probates.

AS to the third Point, we will first see of what validity an erronious proofe is, and thereabout we shall finde this difference: ad­mitting that one hath not Bona Notabilia in divers Diocesses, so as of right, the proving of the Will, appertaineth not to the Metropoli­tane, and yet the Will is proved before him; this is not meerely voide, but stands in force, till it be reversed by some sentence upon ap­peale,22. Eliz. as was resolved betweene Veare and Ieoffries, in the late Queenes time. But on the other side, in Case one have Bona Notabilia in divers Diocesses, or a Peculiar, and a Diocesse, and yet the Will is proved before the Particular Bishop, within whose Diocesse part of the goods are; this is meerely and ut­terly voyde, without any reversall. So also of proving in some Peculiar. And in Case one have Bona Notabilia, both in the Diocesse of Canterbury, and in the Diocesse of Yorke; the Will must be proved, either before both Metropol [...]ta [...]es, if within each of their jurisdi­ctions, [Page 59] there be Bona Notabilia in divers Dio­cesses; or else, as I take it, if there so be not in any of the places, then before the particular Bishops in those severall Diocesses, where the goods are. Or if within the one jurisdi­ction Metropolitane, the Testator had goods in divers Diocesses; and in th'other, but in one Diocesse; then in the one place is the Will to be proved before the Archbishop, and in the other place before the Particular Bishop, as I conceive. And so also of peculiar jurisdictions. And in some places Archdeacons have pecu­liar or jurisdiction ordinary and power to take Probates of Wills and Grant Administrations. But where any like error or misproving is in these respects, it is cause of reversall or of nullity, according to the former difference; so also, if there be falshood in the proofe, were it Cōmuni forma, that is, without witnesses, or by examination of witnesses, yet may it in the Spi­rituall Court be undone; if either dis-proofe can be made, or proofe of revocation of that Will once made, or of the making of a later.

Now, yet admitting the Will true and right, and also rightly proved; let us yet see the force and strength of the Proofe, or Will so proved. It being under the Seale of the Ordinary, cannot be denied, saith one Booke, to wit, whether this shewed forth, be a Will [Page 60] proved or not, no, though the proofe be but indorsed on the backe,9. Ed. 4. 47: 22. Ed. 4. 50. 22. H. 6. 52. viz. that it is so pro­ved, saith the Booke: but notwithstanding the Defendant so sued, may deny that the Plaintiffe is Executor, as not being concluded nor estopped by the Probate, so to say. And the reason is, because the Seale of the Ordi­nary is but matter in Fact, and not matter of Record;Plow. Com. 282. 44. Ed. 3. 32. 19. Ass. p. 2. nor are the sentences of divorce, and the like, in the Spirituall Court, Iudgements, or matters of Record, as hath beene oftenheld.

Of the Relation of Probate and Refusall.

AS for this last Point, both the Proving, and the Refusall shall have Relation to the death of the Testator, as I take it to divers purposes. So as to the Proving, saith the Lord Dyer expresly,Plow. Com. 281. a. 283. and confidently in Greis­brooke, and Foxes Case, and the resolution al­so of the Case proves it. For there Admini­stration being committed be fore any Will proved or notified to the Ordinary, as it should seeme the Administrator sold some of the goods to I. S. and after the Executors pro­ving the Will, brought an Action of Detinue, for those goods against I. S. who pleaded this Administration and sale, and thereupon the Executor demurred, and Judgement was gi­ven [Page 61] for him, as having by the proving of the Will, disproved the Administration ab initio, but it is true, that judgement was given onely by two Judges; one being absent; and th'other dissenting in opinion; yet I thinke it was right, and according to Law; and that Refusall shall have the like relation; else could not the Administration relate to the death of the In­testate,18. H. 6. 22. 2. 9. E. 4. 33. 47. as it doth to some purposes, expressed in divers Bookes,Not to make good a Release made before Co. lib. 5. 28. viz. to have an Action of Trespasse for goods taken before Administra­tion committed,36. H. 6. 8. 2. Ma. Dy. 110. and to have a rent growing payable in that meane time, &c.

What Fees to be paide upon Probate, or for Copyes of Wills, or Inventories. Per Stat. 21. Hen. 8. Cap. 5.

  • 1. Where the goods amount not above five pound.
    • only sixe pence to the Scribe.
  • 2. Where they be above five pound, but under forty pound.
    • two s. sixe d. to the B. B. twelve d. to the Scribe.
  • 3. Where above forty pound to be taken, but
    • two s. sixe d. to the B. B two s. 6. d. to the Scribe; or, r [...] d. for each ten lines of ten inches long at the Scribes choyce.

THese Summes are to satisfie, both for Proving, Registring, Sealing, Writing, [Page 62] Praysing, making of Inventories, giving Ac­quittances, Fines, and all other things concer­ning the same.

Where Lands is given to be sold, neither the money raised, nor the profits thereof shall be accounted as any of the Test ators goods, or chattells, saith the Statute.

Note, that the Will is to be brought with waxe thereunto ready to be sealed, and proofe to be made of the Will, according to common Custome.

For making the Inventory, the Executor is to take, or call to him two Creditors or Le­gatees of the Testator, and doe it in their pre­sence, or in their absence or refusall, two ho­nest persons being the next of his kinne, or in their default, two other honest persons.

The Inventory is to be indented, and one part left with the Ordinary, and the other to remaine with the Executor.

The Executor is to make oath for the truth of it.

For a Copy desired by any either of a Will or Inventory, no more is to be payed than be­fore is allowed for the Registring, with the like election to the Scribe, or Register, as is above-said.

Master Swinborne saith, that an Executor is to sweare, and, if it should be thought fit, to be bound to make a true account when hee [Page 63] shall bē thereunto lawfully called by thē Or­dinary:See also 31. E. 3. cap. 11. Of this account, see him, pag. 274. and of accounting some Bookes of the Common Law make mention,An Administr. shall account as an Executor; Fitzh. Ex. 91. and 837. viz. 18. E. 2. tit. Briefe. as 13. of Edward the third, Fitzh. Exec. 91. Where Trew faith, that of a thing in action, no account shall be before the Ordinary;48. E. 3. 14. 15. but Parn. seemes of a contrary opinion.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. And else where it is said, that where a debtor is made Executor to the Debtee, he shall yet account before the Ordinary, for this debt: yea as of money in possession, saith one, which others denied.

An Executor by wrong,4. H. 7. 15. per Wood. shall be drawne to account before the Ordinary,9. Ed. 4. 47. saith Moyle Ju­stice.Dost. & Stu. 78. b 21. Ed 4. 22. But saith S. German, he may not force a­ny to account against the Order of the Com­mon Law;Plow. Com. 544. 4. H. 7. 15. not shewing what that is.Kelw. r [...]p. 64. a. And [...]emp. Edw. the 4. it is said, at least by the Re­porter, that after the will proved, the Ordi­nary hath no more to doe, quod non credo.

Also of the oath of an Executor, divers Bookes tell, but not to such purpose as Swinb. but truly to performe the Will.

What things shall come unto Executo [...]s, and be Assets in their hands, and what not.

THe things which shall come to Execu­tors, are of great multiplicity, and would make a large and confused heape, if tied to­gether in one bundle or lumpe. I will there­fore divide and sort them out in parts, after [Page 64] the best manner I can. First, we will divide thē into things possessary, or actually in the Te­stator, and things in action, or not actually in the Testator. Secondly, the possessary into chattells, reall and personall, or (as some lesse properly expresse it) moveable, and immove­able.

Of Chattells reall possessary.

THese may be divided into two kinds, viz. living, and not living; the living are not many and various. 1. The wardship of the bo­dy of another, be it by reason of a tenure of the present owner, or by Assignment from the King, or other Lord of whom the tenure was, is a Chattell reall, not personall, though it be an interest in the person of another, but it is in respect of a tenure of Land, or other heredi­tament, and is for yeares viz. during the mi­nority, or till marriage had, and so is reall. Next, a Villen for yeares as by Grant for a terme from him that had the Inheritance is a Chattell reall. As for an Apprentice, for yeares, it is by Custome, as I take it, that hee goeth, or is derived to Executors: but for rea­son after shewed; I thinke this Interest be not in the realtie, but in the personaltie rather. So of a debtor in Execution for debt, the inte­rest [Page 65] in him or perhaps more properly in his liberty is not as I conceive (for reasons which after I shall expresse) a reall, but a personall Chattell. The like Law of a Prisoner taken in the Warres. As for Fishes in a Pond, Co­nies in a Warren, Deere in a Parke, Pigeons in a Dove-house, where the Testator had the Inheritance, or but for life, in the Pond, War­ren, Parke, and Dove-house, they are not Chat­tells at all, nor to goe to the Executors, but to the Heire with the Inheritance. If the Te­stator were but a Termer, they are to goe to the Executor, but as accessary Chattells, fol­lowing the state of their principall, viz. the Warren, Parke, Dovehouse, Pond, &c.

The reall Chattells, not living, are either in Houses or Lands most usually, and that three wayes. First, by Lease for yeares. Second­ly, by Wardship of Lands held by Knights-Service. Thirdly, by extent upon Judgements, Statutes, or Recognizances; Or in things is­suing out of Houses or Lands, as Rents, Com­mons, Estovers, or such like. But where an Inheritor reserves a Rent upon a Lease for yeares, this shall not goe to the Executor, but to the Heire, with the Reversion other than Arrerages behinde, at the death of the Testa­tor. Also Commons, Corodies for yeares, Advowsons, Tithes, Faires, Markets, Pro­fits of Leetes, and such like, which the Testa­tor [Page 66] had for yeares, all which may accrue any of these wayes, as the first are Chattell and Reall. Yea, one simple presentation to a Church, upon the next avoydance, is a Reall and not Personall Chattel, before it come to be voyd, and what then it is, we shall after shew. And the title accrued to the Crowne, upon at­tainder of felony, where the party held not of the King, viz. The Annum diem & Vastum, that is,Temp. E. 1. Assise [...]. power not onely to take the profits for a yeare, but to waste and demolish Hou­ses, and to extirpate and eradicate Trees, and Woodes, is but a Chattell, and therefore though granted to one and his Heires, by the King; yet shall goe to the Executor, and not to the Heire▪

Some doubtfull, or lesse deere Cases, touching Chattels Reall.

FIrst, where we spake of Wardship, it is not to be understood of Wardship, by rea­son of Soccage tenure, for that goeth not to the Executor, but he shall be next Guardian, who now after the death of the first Guardian, shall be next of Kinne, if the Ward continue under fourteene yeares old, else he is out of Wardship. Secondly, if one have a [...]ease for three lives to him and his Assignes, this is no Chattell, nor shall goe to the Executor, nor [Page 67] to the Heire, but to him who first enters and claimes it as an Occupante, if no assignment be in the life of the Lessee made: Contrarily, of a Lease for many yeares, if three, or more, or lesse,37. Ass p. [...]. so long live; this is a Chattell, and shall goe to the Executor. So an extent up­on a Statute, yet it is delivered to the party as a Freehold, viz. Vt liberum tenementum, but that only makes it to be quasi liberum tenemen [...] as to the maintaining of an Assise, if wrong­fully put out. Where one is seised in the right of his Wife, of Land, or other Heredi­tament, and is attainted of treason or felony, the profit thereof accrued unto the Crowne, is but a Chattell,4. E. 3. Ass. 166. Br [...]. Cha [...]. 15. and though the King grant it to one and his Heires, yet it shall goe to his Executors. And if one, having a Lease for many yeares, viz. a 100. 500. or more or lesse, and doe devise and bequeath the same to A. and the Heires males of his body, and for want of such issue to B. and the Heires males of his body, and dyeth, having issue a Sonne, the terme shall not goe to his Sonne, but to his Executor or Administrator, for it cannot be made a matter of Inheritance; so if A. had dyed without issue male, the terme should not have gone or remained to B. but to the Exe­cutor or Administrator of A. as was lately ad­judged in the Exchequor, betweene Sir Rober [...] Lew [...]nor, and Mistris Hamond. So of an advow­son, [Page 68] or any other hereditament, granted or de­vised to one and his Heires for a 100. yeares; or if such a termer grant a Rent out of the Land to A. and his Heires, [...]9. E. 3. 37. or the Heires, or Heires males of his body,So Manwood, if granted for life it is but a chat­tell, Plow. co [...]. 524. yet shall the same goe to the Executor, and not to any Heire; for it being derived out of a Chattell cannot be any Freehold or Inheritance, but it selfe, a meere Chattell. Partus sequitur ventrem.

Of Chattels Personall.

PErsonall Chattells, or Goods moveable, are also in like manner to be divided into quicke, or dead. The quicke are Cattell of all kindes, as Sheepe, Horses, Kine, Bullockes, Swine, Goates, Geese, Duckes, Poultry, &c. There may be also in living Creatures reason­able an Interest, as in a Chattell personall, as in the person of a man taken in execution for debt. And this I hold to be in nature, not a Reall, but a Personall Chattell (as before was touched) for that debt is the roote of it, and the body is but a pledge or gage, dischargeable instantly upon payment, release, or other dis­charge of the debt. Like Law of a Prisoner taken in the Warres, [...] 88. Reg. orig. f. 102. There is menti­one! that the prisoner was to have a 190. l. for his ransome, for thereof and therein, as in a Chattell, hath the party a legall interest, as appeares by a Writ of Trespasse in the Re­gister, for taking away a Prisoner. viz. Quare [Page 69] quendam Scotum prisonarium suum cepit. &c. And note lately, viz. In the time of King Henry the 8. the King himselfe,Bro. no. ca. 295. & tis. Property 38, upon the winning of Bullen bought divers Prisoners of his Subjects. And by a Statute in the beginning of Henry the 6. his time, this Interest in a Prisoner is mentioned as valuable, and comming from one King unto another;1. H. 6. cap: 5. therefore doubtlesse shall go from Testator to Executor by death, and not be infranchised or freed thereby. The interest which one hath in an Apprentice, I take to be rather Personall than Reall, though for yeares, because not springing cut of any Reall roote, as Wardship, and Villenage doe; but out of a meere contract. As for a Servant whose Master is dead, doubtlesse he is legally discharged, and is not Servant either to Heire or Executor; but meete and honest it is, that one of them continue 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: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. 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,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. 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,So an Hunters horne, a Falko­ners lewer. 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 [Page 71] them, both quoad adeptionem boni, & ademptio­nem mali, Hares, Deere, Fesants, Par­tridges, wilde Duckes, &c. are good [...]eate. 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,Fo. 142. 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,Hen. 8. fol. 3. &c. And both Newport, and Newdigate hold that a writ of replevin lyeth of such things, though Brude­nell [Page 72] 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:Rootes of Car­rots, Parsnips, Land sold wher­ [...]n is ripe Corne 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 [Page 73] Executor to some former Husband or other friend,For he was Te­nant for life in effect. 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;The Wife also shall have con­venient apparell 33. H. 6. 31. 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,2. Eliz. Dy. 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 [Page 74] not actually severed by the Axe from their mo­ther Earth. But if the Lessor for yeares or life except the Trees,Co lib. 11. f 48. 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,Of Houses, or things about the 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,42. E. 3. 6. Fats 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? [...]1. H. 7. f. 26. 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 long before in Edward the third his time,42. F. 3. f 6. it was debated whether it were waste in a Lessee to remove or take away a Furnace or not▪ but I finde no o­pinion delivered by the Judges: But in the late Queenes time, Justice walinesly said that [Page 75] the Lord Dyers opinion was, that where the Furnace is not fixed to the Wall, the Lessee might within his termetake it away.H. 37. Fliz. Austins case. Contra­rily, if it were fixed to the Wall, for then it strengtheneth the house. And yet notwith­standing it might be in the one case so remo­ved by the Lessee, yet is it not there, as he said, a Chattell personall or moveable, so as it is attachable; and there the case being that a Clothier being a Termer of an house had fixed a Copper to the Wall with Loomes and prickes necessary for his Occupation, a Judge­ment being had against him, the Sheriffe deli­vered the Copper in execution as a Chattell, and after the Lessee tooke it up, and it was taken from him by vertue of the Execution; whereupon he brought an action of Trespasse, and by all the Judges, the action was maine­tainable. And whereas it was found by the Jury, that by the Custome of Kent, the Lessee might remove such a Copper; Justice Beau­mond, said that without any Custome a Lessee might so doe at any time during his terme. But it is to be noted in the said case, that the Furnace was by it selfe delivered as a moveable Chattell, and not as part of the house, for that was not medled withall, nor at all delivered in extent (as in the case betweene Miles and Prat, where both house and Copper were delivered upon a Statute) the house belike being held [Page 76] upon such a rackt rent, as that the party did not desire to have it, for hee might have had the whole being a Chattell, and so have used the Copper during the terme. And as touch­ing all other fixed things, the Law was taken in the said case in Henry the 7. his time, to be all one, as in the case of the Furnace, viz. that they should goe to the Heire, save onely that for glasse in the Windowes, Pollard said it was otherwise, viz. that that should goe to the Executors, which none there denyed. But since, in the late Queenes time it was other­wise resolved touching glasse, [...] lib. 4. f. 63. 64▪ that it should not goe to the Executors, and the like was there said, touching Wainscotes, and so also by the Lord Ander, in the said case of Austin. And touching Posts fixed, for that they be parcell of the Freehold, so also of Millstones, Anvills, Doores, Keyes, Windowes, none of these be Chattells, but parcell of the Free­hold, or thereto pertaining, therefore, not the Executors.

Now to come to Gardens also: Whereas, I before laid down a difference betwixt things sowed,Things in Ga [...] ­dens. or not arising from the Earth, without manuring, and such as grow of themselves; It will thence be concluded that the rootes of Carrets, Parsneps, Turneps, Skerrits, and such like, coming and arising from yearely sow­ing, must goe to the Executor, and not to the [Page 77] Heire; the case being so, that the Gardner and Sower had the Inheritance of the Garden, or Soile, now though in most places this can rarely be a question of value, yet about London, and some great Townes it may, and therefore not unworthy of a line or two, a thought, or two, the rather for that the reason of this case may give light touching right in other Cases. And in my opinion these, notwithstanding, there is a sowing and manurance to generate them, and cause their being, shall goe to the Heire and not to the Executor: my reason is for that the thing of profit is the roote which is hidden in the ground, and I hold it no rea­son, nor agreeable to Law, that the Executor should digge and breake the soyle and ground to search for her entrailes; hee is to content himselfe with that which is above ground, as millions of all kindes, and the like whose fruit is above the ground; but as for Artichoks, though the fruit be above the ground, yet I thinke they have no such yearely setting, or manurance as should sever them in interest from the soyle, therefore they shall goe with it to the Heire.

Let us now consider of things, though not fixed to, yet usually kept in houses, viz. wri­tings, and evidences, whereabout generally, no doubt can be, but that they follow the in­terest of the Land, so as if they touch inheri­tance, they pertaine to the Heire, if but Termes [Page 78] Goods, Chattells, or Debts, they pertaine to the Executor, yea so doe Statutes, and Bonds in Law (howsoever otherwise in equity) though they concerne the assurance and en­joying of inheritance purchased. What if A. morgage the inheritance of Lands to B. upon Condition of redemption by payment of 500. pound to B. his Heire, or Executor, and B. dyeth, the Deedes being delivered into his hands; now the Heire, not the Executor, shall have them; for though the money may be paid to the Executor, yet meane time the Land descends to the Heire, nor is there any debt to the Executor, for A. may choose to pay, or not. Put it on the other side, that the Land had beene sold for 500. pound, not paid to A. but a Condition that if not paid to him, his Heire, or Executor, by such a day, then to re-enter; and A. dyeth, here is a debt to the Executor, and no Land descended to the Heire of A. yet shall the Heire have the Deedes, for that a Condition is descended to him. Question hath beene touching Boxes and Chests, wherein the Evidences concerning inheritance are; and although the better opi­nion in our Bookes, doth pitch upon this dif­ference, that where they are sealed up, [...] 2. 36. H. 6. 2 [...]. 18. E. 3. 4. [...]. H. 7. 15. they shall pertaine to the Heire, otherwise, where not sealed; I cannot conceive that difference to be grounded on good reason; but rather [Page 79] thinke that Boxes, which have their very cre­ation to be the houses or habitations of Deeds should, as appurtenant to them, goe to the Heire, whether sealed or not. On the other side Chests made for other use, viz. the kee­ping of Napery, or Apparell, shall not, as I conceive be taken as appurtenant to Eviden­ces, because some be in them,Quae. If sole use that way make a difference or not. for so may o­ther things also be: Nor as touching them can sealing be of any effect, but rather lock­ing, and not locking must make the difference touching them, if any difference by inclo­sure.

Of things not actually in the Testator, but accruing to the Executors, by or after the Testators death.

These be of diverse sorts, the first and chiefe whereof are things gotten and acquired by Action or Suite. Secondly by Condition or Covenant without Suite. Thirdly, by Re­mainder.

Of things in Action.

TO speake first of the first, it is cleare that debts due to the Testator, be it by Bond, Statute, or Judgement, or for Arrerages of Rent, are not assets to charge the Executor, [Page 80] untill receipt of them, and it is as cleere that the Actions to recover these doe pertaine to the Executor,See Stat. [...]. H. 8. cap. 17. Reme­dy for Rents of Inheritance, or for life. and that the debt and dammages recovered shall be assetts to charge the Execu­tor. So also of Actions of Detinue, and of co­venant for any thing personall or any Chattell Reall,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. 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.11. H. 4. 32. 45. E. 3. 3. [...]. na. br. 59.

That an Executor at the Common Law could not maintaine an Action of trespasse for goods of his Testator, taken away in his life [Page 81] time seemes to be implyed by the Statutē in the time of King Edward the third.4. E. [...] c. 7. And the like given to Executors of Executors p [...]r. [...]. 25. E. 3. c. 5. 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,17. E. 3. Fit. 106▪ 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,cap. 21. meant [...]. 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 3.21. H. 6. 1. but [...]. contra▪ 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.21. H 8. cap 19. 4 E. 3. As for that no Avowry can be made upon the Tenant, that is now remedyed by a late Sta­tute: [Page 82] The other Statute hath beene taken to extend to other things then Goods moveable, for where a Church becomming voyd,The B. of Co [...]nt. & [...]. and Safes case M. 32. & 33, Eliz. in com. ba. a stran­ger presented thereunto wrongfully, and the Patron dyed, it was resolved in the late Queenes time,So of Ravish­ment. Dl. gard. 7. H. 4. [...]. & 7. H. 4. 6. Erect. [...]. & Tild. Do [...]lauso fracto meerely it lyeth not. 11. H. [...]. 3. 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,This T [...]riā. Iust, did very judici­ [...]sly urge in S [...]les case supra. 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 [Page 83] 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 [Page 84] 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 [Page 85] 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,At least me thinkes; Action upon the case here and before should be main­taineable. 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, [Page 86] 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,3. H. 6. 3. Litleton fo. 42. a. done to their Testa­tor, the money recovered (at least, if Execu­tion be had, or money received) will be As­sets,So held in Sales case of damma­ges in Qua. impe. recovered conte of the present­ment. in their hands, as well as debts recovered upon Bonds or Bills, or Lands, by them ta­ken in Extent, upon Statutes, Recognizances, or Judgements.Releasing. Yea without ever having [Page 87] these moneyes, Executors may make them assets in their hands, viz. by making Relea­ses,13. Ed. 3. [...] 9 [...]. 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,Error 1 [...]. H. 4. 65. 46. E. 23. or, which is more, received the same.Yet upon a ver­dict in Qua. imp. the Wife▪ not the Executor of Husband did seise. 9. H. 6. c. 4.

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 [Page 88] given by Statute. Whatsoever is regained by any of these wayes, as unduely lost by the Te­stator, shall also be Assets.

Speciall cases pertinent to the Premisses.

  • 1. Chattells come to Executors from the Testators, yet not Assets.
  • 2. Assets which be no Chattells.
  • 3. Things in Action, and in the personal [...]y turned into Chattells Reall, & e contra.

AS to the first, I exemplifie thus, A. makes B, his Executor, and dyes, B. makes C. his Executor, and dyes. The Goods left by A. to B. as Executor, farre exceedes his Debts, and Legacyes, or let us suppose no debts nor Legacyes of A. and that B. dyeth much in debt, above the Goods hee leaveth, and did make no alteration of the property of the goods of A. but meerely left them to C. his Executor. Now shall not the Goods which came to B. as Executor of A. and so from B. to C. be lyable in Law, to pay the debts of B, yet in Conscience me thinkes they should, and that C. should not receive them to his owne use, as in Law he may, where A. left no debts. But if A. making B. Executor, did also by his Will give him all his Goods, and he in his life time made election to have them as Lega­tee; [Page 89] 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,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. 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.So held in Sales Case, in com. ba. But if B. had dyed before the Church had become voyd; Then because the Executor might lawfully have sold it,Vende [...] [...] p [...] ­test emerat ipse prius. 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 [Page 90] 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.22. H. 8. [...]. Villenage 46. First, where a man leaveth a Villen for yeares to his Executors, and the Villen purchaseth Land in Fee-simple,If he dye, how shall this be Assets in the heire. and the Exe­cutor entreth into the Land; now hath hee Fee simple therein; and this Land is Assets for payment of the Testators debts.3. H. 63. and so 2. Hen. 4. 21. So, if a man by his Will,If by Feoffment per Markam, cap. I [...]st. contr. Rick­ [...]ill. give Lands in Fee to his Ex­ecutors to be sold for performance of his Will. These (before the money thereby rai­sed) are Assets, both for payment of debts, and of Legacies: But if the Lands had beene given to be sold onely for payment of debts, they should onely be Assets for that purpose, and not for payment of Legacies: and so, if it were expressed to be for payment of Legacies singularly, this should not be Assets for debts, as I take it. For since these are not Assets of their owne nature,See 9. El. Dy. 264▪ but so made by the Will and disposition of the Testator; me thinkes they cannot be otherwise, nor farther Assets [Page 91] than as the Testator hath willed, and disposed; but though Lands thus given were Assets be­fore the Stat. 21. Hen. 8. cap. 5. Yet how can it be so, since for the very words of the Statute be that if one will by his Testament or last Will, any Lands, &c. to be sold, neither the money thereof comming, nor the profits ta­ken, shall be accounted as any of the goods or chattells of the Testator, which I conceive to be all one, as to say, that they should not be Assets; for when an Executor denieth him­selfe to have Assets, the forme of his plea is, Quod nulla habet, bona nec [...]atalla, &c. Yet, since that Satute,9. H. D. 264. viz. in the late Queenes time,14. H. D. 31 [...] the Law was twice admitted, or concei­ved still to be according to the third of Hen. 6. viz. that the Land devised to be sold, or the money thereof comming should be As­sets. Indeede, in neither of those Bookes, is there any mention of the clause in the said Statute; and it is possible that it might be forgotten, as in other Cases sometime hath happened. But casting about how to recon­cile those Bookes, with the said Statute, and not to suppose the same forgotten at both times, both at the Barre, and Bench (though being but a short clause in the middle of a large Statute to other purpose, it might well so have beene) at the last, though not hastily I grew to conceive, that the said clause being [Page 92] in an Act which limitteth the Fees of Ordina­ries, and their Scribes, according to the value of the goods of the deceased, and then bring­eth in this clause, that the Lands willed to be sold, shall not be accounted as any of the goods, &c. The Parliament meant thereby onely to exclude them to this purpose, that they should not be accounted as part of the goods in the valuation, according to which the said Fees were to be rated; and though the words be generall, that they shall not be accounted as any of the goods, &c. yet is it the more probable, that the Parliament meant no further then as afore­said, because that clause after the Fees limit­ted in answerablenesse to the values, is brought in by a Proviso, viz. provided al­wayes, that if the deceased Willed any Lands to be sold, the money nor profits shall not, &c. And thus perhaps it was under­stood and construed in the said late Queenes time, though no mention be of any remem­brance of that clause or provision in either of those Cases reported by the Lord Dyer.

As for the third, viz. the changing of things out of the personalty, into the realtie, and e contra, I shew it thus: If a debt were due to the Executor, as Executor by Statute, Recognisance, or judgement, and he sue Exe­cution, and have Land of the debtors in ex­tent: [Page 93] now is the personall duty turned into a chattel reall. On the other side, if such an estate by extent, or a Lease for yeares mortgaged come to an Executor, and the debtor, or mort­gager payeth the money due; now are these reall chattells turned into Assets personall.

Another speciall Case of Equity opposing Law.

IF A. be bound to B. by Bond, Statute, or Re­cognizance for assurance of Land, B. dieth, & the Land descends to his heire; or be it that B. sold the Land to C. and assigned to him the Bond, Statute, &c. yet must the Sute, or ta­king out of Execution, be in the name of the Executor of B. and neither of the heire, nor Assignee. And that which is recovered, or gotten in extent, will be Assets in Law to charge the Executor, as I take it, yet in equity it pertaines to the Heire or Assignee Quaere If the Executor meddle not, but onely suffer his name to be used.

Of things come to Executors by Condition.

First, we will consider of Conditions bring­ing backe to Executors goods, or chattells granted away by their Testators. Touching which, there is no doubt, but if the Condition [Page 94] be any other than for payment of money, or other things valuable by the Testator,Note Diff. or his Executor, the chattell returning to the Exe­cutors is Assets in his hands: as put the Case a Lease for yeares, Horses, Sheepe, Plate, or other Chattell, were granted by the Testator to A. upon condition, that if A. did not pay such a summe of money, or doe such other Act as the Testator appointeth, and this con­dition is not performed after the Testators death, now is the chattell come backe to the Executor, and is Assets. But the question hath beene (and perhaps may be) where the con­dition is, that the Testator or his Executors, shall pay the money to make voyde the Grantee, and accordingly, the Executor after the Testators death payeth the summe out of his owne purse, not having any money of the Testators in his hands: in this Case comming in question, [...]1. Hen. 7. tempore, Hen. 7. It was resolved at the last, that this redeemed chattell should not be Assets, but be to the Executor as his owne proper goods, though at the first, three Judges were of contrary opinion, viz. that the goods redeemed should be in the Execu­tor, as goods of the Testator. And truely I must confesse, that I cannot yet finde good satisfaction in that Bookes resolution, except wee shall take the Case there to be such as that which is put and reported by the Lord [Page 95] Dyer, tempore Hen. 8. viz. that the money payd for redemption, was as much as the full value of the goods, pledged, or mortgaged, or else shall admit the Case to be, that this re­demption was not by payment at the day conditioned. As to the first, it were rare, that any should lend money upon a mortgage, where the thing mortgaged, is not of better value than the money lent: rare also, that an Executor should take care to redeeme with his owne money, that which should yeeld no benefit or advantage to him, or his Testator. Let us therefore scanne and examine the Point, since the same may come frequently in use; and this we may the more decently doe, because the Lord Dyer in the Margent of the Case by him reported, as aforesaid, saith expresly, that the said other temp. Hen. 7. was not at all adjudged, himselfe having viewed the Roll, which he there sets downe, and the names of the parties. Wee will therefore put the Case thus. A. posessed of a Lease for sixtie yeares, of one hundred pound Land, mortgageth it for five hundred pound; or be it that the mortgage or pledge be of a Jewell, or peece of Plate for halfe the value, and that before the day limitted for payment, and re­demption A. having made B. his Executor dieth, and B. at the time and place maketh payment, as was conditioned. Now the [Page 96] question is, whether this Lease, Plate, or Jewell, being worth much more than the summe for which it was mortgaged, shall be in him wholly in his owne right, and to his own use or partly, if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies. Here it must be cleerely ad­mitted, that B. was inabled to this redempti­on onely, and meerely by the Condition annexed to the mortgage, or pledging. It must also be admitted, that this Condition, and the power or interest to take benefit thereof to him; came, and was derived onely as Exe­cutor of A. This being premised, it must needs follow, as to me it seemes, that the Conditi­on working, and having his operation in the redemption to destroy the Grant, mortgage, or pledging, it must needs make these againe the Testators goods, in statu quod prius, and so to be in B. as Executor; since in that right onely, he was intituled to take benefit of the Condition. For what is it which hindred be­fore this, from being the Testators goods; nothing certainely, but onely the force and strength of the mortgage or pledge: Now by the redemption, that is become voyd, & hath it losts its force; therfore the property of these things must needs now be; as if no such mortgage or pledge had beene; or as if it had at the first beene voyde, and of no force: [Page 97] Thus must the Condition worke for him, who made it, viz. A. the Testator, and those of the contrary opinion in the time of King Hen. 7. doe yet say, That by this redemption, the Testator is so much in debted to the Ex­ecutor, as he disbursed for the redemption; which could stand with no reason, unlesse by it the property and interest should be reduced to the Testators behoofe. That thus it is, is also proved; as to me it seemes by the Case of mortgage of Inheritance, upon which the heire making payment, according to the con­dition, is not now in as a new purchasor, but as heire, so as he shall have his age, and be in Ward, even for this Land: Yea, it shall be Assets in his hands for satisfaction of his Fa­thers, or other Ancestors debts, which in some respect is a harder Case than that of the Executor; for he hath meanes to satisfie him­selfe of the money disbursed, either out of the thing redeemed, or other goods of his Testa­tor, but the heire hath no such meanes. Yet it will be asked, how the Executor can be free from mischiefe, for if this thing redeemed be intire, as the Cup or the Lease, the whole will be taken in execution for the Testators debt. To admit this, yet here is one cleare way of remedy, viz. the Executor may before such Execution, sell the thing, and so pay himselfe, and retaine the surplu­sage [Page 98] to the Testators use, and the like of this is frequent in use, viz. for Executors to pay of the Testators debt, with their owne money, and to make themselves satisfaction out of the Testators goods. Besides, it not im­possible, that this redeemed thing should be thus in interest parted, that answerably and proportionably to the summe disbursed for redemption, with reference to the value of the thing redeemed, a moyetie or third part, or three parts therof should be to the Execu­tor in his owne right, as his owne proper goods, and the rest in him as Executor. As posito, that A. and B. were Tenants in Com­mon of such an entire Chattell▪ A. maketh B. his Executor and dieth. Now hath B. one moyety as Executor, and another as his owne proper, and upon a Judgement against him as Executor, that moyety onely which hee hath as Executor, must be taken in ex­ecution; and here may be remembred how in execution of a Judgement, or levying of an Amerciament out of an intire Chat­tell of more value than the summe to be levyed, the whole is to be sold, and the sur­plusage above the debt or Amerciament is to be delivered backe to the owner. For in all this debate, we must presume the thing re­deemed by the Executor, to be of better va­lue than the summe payd, else wee may easily [Page 99] admit the whole to the Executor. Againe, the Lease for yeares, is not so intire a thing; I meane the Land let, but that thereof partiti­on may be made; yea inforced by Action betweene joynt tenants, and Tenants in Common: But here will be objected, the Case of redemption by the daughter and heire; who though she have a brother borne after; so as now she is no longer heire, yet she shall, as the Booke saith, retaine the Land re­deemed from the heire as a Perquisite or Pur­chase. As for this (which I will not oppose) the Law so frameth to the favour of the daughter, because of great mischiefe to her, if being stripped of the rest of the Inheri­tance by the birth of a brother, she should also lose that which her money had redeemed, without having any remedy to have her mo­ney againe, or any recompence for it; but in the other Case, there is no such mischiefe for that the Executor may pay himselfe as hath beene shewed.

Now on the other side, if the Case shall be understood, that the redemption was by pay­ment after the day, then will I easily admit that the property or interest, is in the Executor to his owne use; or that the Condition, now having no power to reduce it backe, or to o­perate any thing: It is rather a re-emption, than a redemption, since it was at the Will of [Page 100] the Mortgagee, to dispose it at his pleasure, and any stranger, as well as the Executor might thus have redeemed, viz. repurchased it, therefore onely Equity and not Law in that Case can make any part of the value As­sets in his hands: And so also I thinke if wee should admit in the other Case of payment, at the day that the property of the chattell is to the Executor as his owne, and not his Te­stators goods, no part of surplusage of value, can in Law be Assets, howsoever in Equi­tie.

Lastly, if the Executor redeeme by pay­ment at the day with the Testators owne mo­ney or goods, none will doubt, but that the thing redeemed is in him as Executor, and the money by him payd for redemption is well Administred, the goods redeemed being of better value. But this way it makes no diffe­rence, whether the whole value of the goods redeemed, shall be held Assets; and the mo­ney payd for redemption stand drowned therein, or that that summe be still adjudged in the hands of the Executor, as Assets, and onely the surplusage of the thing redeemed over and above the summe payd for re­demption.

Things accrued by Covenant or Assumption.

IF A. Covenant with B. to make him a Lease of such or such Land, by such a day; and B. dieth before the day, and before any Lease made; now must A. make the Lease to the Executor of B. and the Lease so made to him, shall be in him as Executor, and con­sequently as Assets. This is proved by the Judgement, in the Case betweene Chapman and Dalton in the late Queenes time.Plowd. Com. Yet I confesse, that it is not expressed in the resolu­tion of this Case, that this Lease should be Assets, but that the Executors should have the Terme as Executors, which implyeth as much in my understanding; and the declara­tion, whereupon the Defendant demurreth, sets forth the breach of that Covenant to be in retardatione executio [...]is testament. so as the dammages thereupon recovered, viz. 300 and 30. pound were Assets, and consequent [...]y al­so, should the terme have beene in [...]ew and re­compence whereof these dammages were gi­ven. The like Law, if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Mault, or so many loades of Coales or Wood, or any other Wares or Marchandise; and this is not performed in the [Page 102] life of B. but after to his Executor, it shall be to him as Executor, and shall be Assets in his hands, as well as the money recovered in dammages for not performing should have bene.

Of things accrued by remainder, or increase.

IF a Lease be made to one for life, the re­mainder to his Executors for yeares, and he dieth, this will be Assets in the hands of his Executors, though it were never in the Testa­tor, as was in the later end of the late Queenes time, resolved by three Justices, the Lord Anderson onely being of a contrary opi­nion; and there it was said, that Cranmers Case, wherein the contrary in effect was re­solved, was of little authority; for that there were first two Judges against two, till after, Mounson changed his opinion, upon a con­ceit, that there the estate was by way of use, which could make no difference; like law where a Lease for yeares is by Will bequea­thed to A. for life, and after to B. who dieth before A. Although B. never had this terme in him, so as that he could grant or dispose it, yet shall it rest in his Executor, as his goods and be Assets. As for a remainder for yeares, so in the Testator, that hee might grant or [Page 103] dispose it at his pleasure, no doubt can be thereof, though the same fell not in possession to the Testator in his life time, yet no scruple nor doubt can be, but that this is Assets to the Executor, even whilst it continues a remain­der, and before it falleth into possession, because it is presently valuable and vendi­ble. Nor much of other nature, to these are the Cases,11. H. 6▪ 35. per Babington. where the Executor Marchan­dizing with the goods of his Testator, ma­keth gaine thereof. So if the Sheepe, or o­ther Cattell of the Testator doe breed, viz. beare Lambs, Calves, Colts, &c. after the Testators death, even these which were never in the Testator shall yet be Assets, and so the Wooll growing upon the Sheepe after the Testators death. But there is one Case worth the consideration and worthy of some doubt, as I thinke, and that is this. One leaveth to his Executor a Lease for yeares of Land, worth twenty pound by yeare, and the Exe­cutor keeping this in his owne hands, one yeare after the Testators death, doth make thereof thirty pound in cleare gaine above all charges, now whether, as to a Creditor, this whole thirty pound shall be Assets, or onely twenty pound, and the Case simply thus put, shall be understood of an occupying, and ma­nuring without any stocke of the Testators; and then if the Executor did stocke it with his owne Sheepe, or other Cattell, as he must [Page 104] have borne the losse by rot or death; so is it reason, that if the manurants prove gainefull, he reape the fruits thereof in recompence of his adventure, and of his industry, skill, and good husbandry. But if the Testators stocke of Sheepe and Cattell were (as of necessitie, or for the better advantage of the Testators estate) continued upon the Lease Land, then is it reason, that the gaine or losse whethersoe­ver of them God sendeth, doe redound to the Testators estate. Like Law, as I thinke, if an Executor finding, that he cannot instantly, after the Testators death, let the Lease Land neare the value, shall therefore buy seede-Corne, and hire the plowing, &c. But it may be said, that the Lease hath one entire valua­tion at the first, upon the appraisement. To this I answer, first, that the value upon the ap­praisement is not binding, nor much respected at the Common Law, if it be too high, it shall not prejudice the Executor; if too low, shall not advantage him; but the very value found by Jury, when it comes in question, whether the Executor have fully administred, or have Assets or not, is that which is binding. Next I say, that if a long Lease come to Executors, of Land worth an hundred pound by yeare, and no sale is made thereof by the space of a yeare or more, now the terme continuing of the like value, as at first, it is no reason but [Page 105] this hundred pound raised the first yeare, should goe towards the payment of debts and Legacies rather then any of them should be unpaid. This thing, I meane the knowledge of them are usefull two wayes, viz. First to give light to Executors, to discerne what unto them of right pertaines: Next to shew unto Creditors and Legatees, what and how farre things shall be Assets, that is to say, goods to enable, charge, and binde Executors to pay debts and Legacies. For whatsoever any of these wayes commeth to the Executors from their Testator, or is recovered by any of these Actions, shall be in their hands Assetts, the Cost and charges of recovering deducted.

What manner of Interest an Executor hath in his Te­stators Goods and Chattels, and how different from the common Interest they or others have in their owne proper goods.

THe Interest which an Executor hath as Executor in the Goods of his Testa­tor is much different from the abso­lute, proper, and ordinary Interest, which eve­ry one hath in his owne prope: Goods, as may well appeare in and by these points, 1. Al­though if a stranger take away these Goods, the Action of Trespasse for the Executor, is of generall forme,24. E. 3. f. 35. Quare bona sua cepit, calling them his Goods, whereas a man Outlawed in Debt, &c. or convict or attainted of felony or treason,32. H. 6. 34. forfeiteth all his owne Goods, yet these which he hath as Executor, shall not be forfeited. If a Villen be made Executor, his Lord cannot take these goods, though he may take all the Villens owne Goods: [...]itl. tit. ville­nage. 41. 42. and for ta­king such Goods, or for a debt due to the Te­stator, a Villen may sue his Lord. Nay, if the [Page 107] Executor grant all his Goods, some good o­pinion hath beene,10. E. 4. fo. 1. that these which he hath as Executor should not passe,Yet 39 H. 6. f. 15 yea the Lord Dyer so held in the late Queenes time,A release of all actions, by an Executor, ex­tincts actions as Executor. with this difference, viz. Where the Grantor is named Executor in the Grantee, there the Goods which he hath as Executor should passe, but otherwise if he be not named Exe­cutor in the Grantee,But Frowicke i [...] against it in 20. H. 7. K [...]l. 64. and that this opinion is probable, will further appeare by that which followeth.

Secondly, the Executor cannot by Will give or bequeath the Goods he hath as Execu­tor, and if he dye intestate, and Administra­tion of all his Goods is committed to I. D. yet hath he nothing to doe with the Goods which the Intestate had, as Executor to his Testator: Thus all his Goods, reacheth not to his Goods as Executor.

Thirdly, whereas a mans Goods stand lia­ble to the payment of his debts, both in his life time and after.See these so re­solved in Plow. com. 525. int [...] R [...]ansby & Grantham. P. 20. Eliz. The goods which a man hath as Executor, are not to be taken in execution for his owne debts either upon a Recognizance Statute, or Judgement had against him. And if such a one dye indebted, leaving to his Exe­cutor much Goods, which he had as Execu­tor; these are not Assets in his hands, lyable to the payment of his debts, but onely for the payment of the first Testators debts or Lega­cies. [Page 108] Therefore a Quo min. brought by an Executor, shewing that he was not able to pay the Kings debt, because the Defendant detai­ned from him an 100. pound, which he owed him as Executor to I. S. was overthrowne, for that it could not be intended, saith the Booke, that the Kings debt could be satisfyed with that which the Plaintiffe should recover, and receive as Executor. Whereas a Woman be­ing possessed of any Chattells personall, viz. moveable Goods, all be devested out of her into her Husband by her marriage, so as if he dye, and she overlive, they be not hers againe, but her Husbands Executors, or Administra­tors, and if she dye, all be the Husbands, with­out being Executor to his Wife. It is not so of the Goods which shee hath as Executor, these still remaine in and to her, if her Hus­band dye, and if she her selfe dye, for that she hath them as it were in another right, viz. as she represents the person of her Testator, her Husband shall not have them, if he be not his Wives Executor, and so Executor to her Te­stator.

Lastly,This may be in his name onely out of whose possession the goods were ta­ken. whereas the Writ of Trespasse seemes to make no difference betweene ones owne Goods, and those he hath as Executor, that being a possessory Action or suite groun­ded upon the possession; yet come to an Acti­on of debt, which more tastes and participates [Page 109] of the right, and there are they differenced: for where for my owne debt, when I sue, the Writ saith Debet & detinet. viz. that the De­fendant owes me, and detaines from me that summe. Yet when I sue as Executor, the Writ saith not,Co. lib. 5. fo. 32. debet, he doth owe me, but detinet onely, he detaines from me, as admit­ting that he is not the Debtor to me, though he should pay me; and so where I am sued as Executor, the Writ makes me not a Debtor, but a detainer; Otherwise, where in my owne right, I owe and am sued for a debt. Accor­dingly, where Judgement in an Action of debt is given against one as Executor, it is not generally that the Plaintiffe shall recover a­gainst him, but he shall recover of the Goods of the Testator, and therefore upon this judge­ment no Capias lyeth against him, to inforce him to pay by Arrest of his body, because he is not properly debtor, but if after it be retur­ned that he hath wasted the Testators Goods, out of which the said debt shall be satisfyed; Then he having made himselfe a Debtor, a Capias ad satisfaciendum, shalbe awarded, against him, and then he shall be taken in Execution. So also in some cases of false plea pleaded, for where the Judgement is de bonis propriis, the Plaintiffe may have a Capias ad satisfaciendum, 34. H. 6. 43. and that Judgement is in diverse cases for the dammages, although not in many for the prin­cipall. [Page 110] As for the Capias before Judgement, in the meane proces against an Executor, that is, because of his Contumacy in not ap­pearing upon the former proces.

The reason of this different interest be­tweene an Executor and another, or betweene the same mans having goods as Executor, and others in his owne right; as also of the diffe­rent manner of ones being indebted as Execu­tor, and otherwise in his owne right, is well ex­pressed by the Lord Cooke, in Pinchons case, viz. First,Co. lib. 9. 88. b. that the goods which one hath as Exe­cutor,See this also Plo [...]. com. 520. a. he hath not in his owne right, but in au­ter droit, that is, in the right of another, mea­ning his Testator. Secondly, that Executors are but the Ministers, and Dispensors, or Di­stributors of their Testators Goods.

Of alteration of property in the Executors hands, so as some goods become his owne, which he had as Executor.

TO this head or Chapter, treating of the difference betweene the Interest in Goods, as Executor, and others had meerely in ones owne right, and to his owne use, it is not im­pertinent, to consider how that which one hath at the first as Executor, may be changed in property, and become the Executors owne to his owne use, as other his goods, which he [Page 111] had not as Executor. Here let us first consi­der of ready money left by the Testator: for since pieces of money, viz. shillings, groates, pieces and halfe pieces of gold, cannot bee knowne one from the other, it must needes follow that these comming to an Executor from the Testator must in some sort be altered in property, so as though the Executor shall be said to have so much in money or value, yet can it not be discerned which money in his house was his Testators, and which his owne. Consequently the Sheriffe upon the fieri faci­as, for a Creditor, who hath recovered against the Executor to pay debt owing by the Testa­tor, cannot hold.

Of some cases and questions betweene the Executor and the Heire.

THE Executor may in convenient time after the Testators death, enter into the house descended to the Heire,21. Hen. 6. 30. for the removing and taking away of the Goods,If other goods taken among them he is ex­cused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded. so as the doore be open; or at least the key be in the doore: and this I understand of the doore of each roome: for although the doore of entrance into Hall and Parlor be open, the Executor cannot by that justifie the breaking open of the doore of any Chamber to take goods there, but onely may take those in the roomes which be open; and this is proved,43. E. 3. 24. Br [...]. 145. Makes a quae. if it be locked. as to me it seemes by the case of the chest with evidences, which, saith the Booke, the Executor may take and put out the Deedes, delivering them to the Heire, viz. the chest being unlocked, as I understand it. Now a Chamber or other roome within a house, locked is an enclosure of better respect then a chest.Plow. com. 280. But if the goods be not removed within convenient time, the heire may distraine them as dammage fesante.

[Page 113] Where the Testator recovered Land and dammages,43 Ed 3. 2. or a Deed and dammages, he dying before execution,10. Ed. 4 5. 6. the Heire shall have execu­tion for the Land or Deede,Of the Deed ex­ecution first. and the Executor for the dammages, but temp. Edward the 4. it is said that untill the Heire sue a Scir. sac. the Ex­ecutor cannot sue execution for the damma­ges.

If a Creditor be made Executor by his Deb­tor, and pay himselfe part out of the Goods, he cannot sue the Heire for the rest,12. H. 4. because the debt cannot be apportioned, but other­wise, he may, saith the Book: yet Quae. if he doe take upon him the Executorship, and have goods sufficient to pay all.

If a debt be recovered against one who dy­eth before execution sued,7. Hen. 4. f. 31. leaving goods suf­ficient to satisfie;See Bro. Exe. [...] 24 now shall not the Land de­scended to the Heire, be charged therewith, nor by like reason, any land conveyed after Judge­ment.

See a good difference where land is convey­ed,Co. l. 3. f. 90. 91. upon condition of payment to the Vend or his Heires or assignes,To like purpose see more, Litl. f. 77. b. 2. Eliz. Dy. 281. Plow. com. 291. and he dyeth before the time, and where it is to be paid to the Vendee his Heires or Assignes, and he dyeth; in the first case, payment shall be to the Executors, but not in the other.

What things pertaine to the Heire, and what to the Executor is before shewed.21. Hen. 7. 4. As for [Page 114] Frowickes opinion, that where goods be mort­gaged upon condition, that if the Heire or Exe­cutor pay, &c. here if the Heire make payment, he should have the Goods: I see not how that can be.

A Directory for the following Chapter.
  • A. All as but one represent the Testators person, and must joyne and be joyned in suite, & e contra.
  • B. Where one alone must answer suite; and how.
  • C. When they differ in Plea, the best shall be taken, but one may confesse alone.
  • D. One aswell as all, hath, may give assent or release the whole.
  • E. One cannot give nor release to another, nor divide
  • F. The possession of one is the possession of all, to what purpose.
  • G. If the surviver dye Intestate, the Testator is in­testate, though some other Exec. left an Executor.
  • H. Included in the person of the Testator, and re­presents it. Is his Assignee; all one, & e contra.
  • I. What change by death of the Testator, touching proceeding in suite.
  • K. Proceed to or in Execution, where without Scire fac.
  • M. Whether the Executor stand in his owne quali­ty or his Testators.
  • N. Where one alone may sue.
  • [Page 115] O. In suite for them such as will not joyne shall be severed, and th'other may sue and prosecute alone: consequents inde.
  • P. Death of one Executor, Plaintiffe or Defendant; where abates Writ.

How Executors stand betweene themselves, and in representation of, or relation to the Testator, As his Assignee or Deputy, or as the same person with him, and where and to what purpose, as other persons.

FIrst,A all of them doe represent the person of the Testator,Are as one per­son; therefore cannot plead severall pleas [...] abatement. 3 [...], H. 6. 17. 9▪ H. 6. f. 44. 38. E. 3. 9▪ and there­fore must they all joyne in suite a­gainst others, and in suite by others they must be all made defendants, or at least so many of them as do Administer:Bro. Ex. 13. for though the Executors themselves must take notice by the Will,Br [...]. Ex. 20, 21. how many Executors be, and must frame their suite accordingly;Therefore one Executor sued, i [...] he plead that there is another Executor not su­ed, must plead that he did ad­minister, 9. H. 6. Creditors and strangers neede not take notice of any more then doe Administer, and Execute the Office of Executors.44. Bro. 13. 33. H. 6. 38. [...]. [...]. 20. For this reason, as I take it, in [Page 116] the time of King Edward the 3. where two Ex­ecutors were of a terme,32. E. 3. quid jur. [...]. 5. and the reversion was granted by Fine, mentioning but one termor, and thereupon a Quid juris clamat, accordingly brought against that one Executor, this was held good enough, though the other Execu­tor was not named in the Suite; belike, be­cause that one (who indeed was the Testators Wife) did onely occupy the Land, and take the profits thereof; for else since all the Exe­cutors doe represent the Testators person, all must have beene named. Therefore did the Judges resolve in the time of Henry. [...]3. H. 4 Aid. [...]86 the 4. that where a Lessee for yeares made two Exe­cutors, and one of them was distrayned by the Lord for Rent, who avowed upon the Lessor, that Executor should have aide of his fellow Executor,A to the end that both might have aide of the Lessor, which one alone could not. And upon this reason, viz. that the Executors represent the person of their Testa­tor,9. Ed 3. cap. 3. as one person (for so speakes the Parlia­ment) It was enacted in time of Edward the 3. that the Executors, though never so many, shall have but one essoyne, neither before ap­pearance nor after,A because their Testator whose person they represent, could have had no more.

It is further also enacted by the said Statute, that where two or three Executors or more be, [Page 117] they being sued in an action of debt, though all doe not appeare; yet such one of them or more as doe,B or doth appeare at the Graunde distresse, But not if he ap­peare at the summons 1. E. 4. 1. 14. H. 4. f. 11. shall answer alone without his companions. And this Statute hath beene taken by equity in three respects.But the Plaintiff must declare a­gainst all. He need not but he may admit ano­ther to appeare, and plead after. 7. H. 4. 12.

First, touching the persons: that it shall ex­tend, not to Executors onely, but also to Ex­ecutors of Executors, yea to Administrators also,But Proces must be continued a­gainst all. 7. H. 6. 35. though the Statute speake onely of Exe­cutors.

Secondly,Executors of Ex­ecutors by equi­ty. 39. H. 6. 45. Bro. Exec. 99▪ touching the actions; whereas the Statute speakes onely of the Action of debt, it is taken by equity to extend to other actions,28. H. 6. f. 4. as the Writ de rationabili par [...]e bono­rum, and detinue, 14. H. 4. 23, 24. So negatively. yet perhaps, this latter acti­on will be said not to be maintaineable against Executors,21. H. 6. f. 1. for their Testators act,28 H. 6. f. 4. but for their owne onely;3. H. 6. 351. But we yet are not come so farre as to determine what is maintaineable;39. E. 3. 5. There it is not meerely as Executors, it is out of the stat▪ 11. H. 4. [...] 3. As if in deb. & de [...]. but whether before all the Executors doe appeare, he or they which have appeared, shall be put to answer;B and so to bring it to decision; whe­ther the action be maintaineable,Conte. 47. E. 3. 22▪ or not. I thinke also that in the action of covenant,So 7. E. 4. 20, 21▪ and all other actions against Executors,3. H. 4. 20 Ins [...]. fac. upon a par­don by defen­da [...] [...]utlawed at their suit. as Execu­tors, he which appeareth, must answer with­out his companions,47. E. 3. 22. though the greater opi­nion in the Quadragesimes were contrary tou­ching the action of Covenant.Onely [...] in the Affirma­tive. But as for the [Page 120] sub paena against Executors, which is to make them to answer to a suite in equity;8. E. 4. 5. that hath beene temp. E. 4. taken to be out of the reach and intent of the Statute. So also of the La­titat in the Kings bench, as was held in the same Kings time,9. E. 4. 12. 13. except all the Executors, making up the whole representative body of the Testator, be in the custody of the Mar­shall,B one or more of them who are there shall not be inforced to answer;20. vel. 21. Jac regi [...]. and so was it also lately held in the Kings Bench, where Master Justice Houghton gave an excellent reason, this case is out of the said Statute, viz. for that this Writ doth not mention any debt, nor name the Defendants Executors.

Thirdly, and lastly, that Statute is extended by equity to other Writs or Proces; for where the Statute speakes onely of the Grand di­stresse,B and the Executors appearing thereupon; It hath beene many times ruled, that when he or they appeare upon the Attatchment,1. E. 4. 1. Capias, or Exigent, 40. E. [...]. 1. answere must be, though the rest appeare not; for so the word Distresse is taken for all compulsary meanes or enforcement of appearance. But where the Statute reacheth not, viz. when the Proces is determined a­gainst one or more, as by Outlawry, &c. there the rest must answer by the rules of the Com­mon Law;B except it be in the case of Husband and Wife Executor, for there the Wife can­not [Page 121] answer without her Husband, nor doubt­lesse can he without her, where she and not he is Executor;11. H. 4. 63. but where both be Executors,C there he may answer without her,Or if but one ap­peare. 28. H. 6. f. 364. judgment against all. but not she without him. When Executors as Defen­dants have appeared, if any one of them will confesse the Action,See 9. E, 4. 12, 13, 14. where B. who is not Ex­ecutor is joyntly sued with A, & B. confesseth. 2 [...] H. 7. 25. Yet 7. E. 4. 8. They may severe in pleas not dila­tory C 7. H. 6. f. 6. per Cottesi [...]e. this bindes and concludes the rest; but if one will plead one plea, and the other another, that say some, shall be re­ceived which is best for the Testators state; so where they sue, such as will not prosecute, shall be severed, and the rest without them may proceede; and in like manner where they pray to be received to defend their terme,If they recover and one of them prayes a cap. ad sat. and the o­ther a Fiers. fac. the first as best shall be granted 3. H. 4. 10. Bro. 44, So where the defendant Out­lawed at the suit of two Execu­tors, & upon the Se [...]. fac. after his pardon but one appeares. 21. H. 7. 25. D 9. E. 4. 12. 14. and one of them after makes default; it shall not be the default of all, but the rest, or he, if it be but one who appeares shall be received to up­hold the defence of the terme,

Thirdly, so where they pleade a release to the Testator or themselves, one after making default, this shall not be, nor make a totall de­fault in the Executors, to induce a judgement or condemnation against them. Yet in truth each Executor hath the whole of the Testators Goods and Chattells,21. E. 3. 13. be they Reall or Per­sonall,27. H. 8. 21. 22. and each may sell or give the whole. One of them cannot give nor release to the other his Interest,D E and if he doe, it is voide, and he who releaseth shall still have as much in­terest, as he to whom he released, because each [Page 120] had the whole before, upon this reason long since, where one of the two Executors relea­sed but his part of a debt,C it was held that the whole was discharged: and so if one Executor grant his part of the Testators Goods, all pas­seth, and nothing is left to the other, for that each hath the whole,If an horse come to foure Execu­tors, each hath an horse, and yet all foure have but one. and there be no parts or moyeties, betweene Executors. Therefore, also though a lease for a thousand yeares, of a thousand acres of Land come to two Execu­tors or more,27. H. 8. 21. 22. no partition or division can be made betweene them,E because it is not be­tweene them, as betweene joynt Lessees of Land where each hath but a moyety in in­terest though possession of or through the whole. Amidst Executors, each hath the whole,D and therefore if he graunt his part he graunts the whole. But one Executor may demise or grant the moyety of the Land for the whole terme, and so may the other doe, and this way they may settle in friends or o­thers trusted for them, a moyety for each; ei­ther in severall or undivided;E but one of them cannot make a lease to the other of any part, for he had the whole, nor can one sue the other as Executor, yet if the Testator devise to one of his Executors, all his goods after such debts and Lega [...]ves satisfyed, [...]. H. 7. 5. there after those satis­fyed, that Executor may take the Goods and maintaine an action of Trespasse against the [Page 121] other Executor, if he take them from him, and consequently an Action of Detinue, for keeping or detaining them: but this is as Le­gatee, his owne assent perfecting the Legacie.

The possession of one Executor,F is the possession of all the rest; so, as if one appea­ring to a Sute, and the other making default, in whose hands all the goods be which are not administred, if, I say, here hee that ap­peares, pleades that he hath nothing in his hands, this shall be found against him; for whatsoever any of the co-executors hath,14. H. 4. 12. Bro. 12. hee also hath,F and is in his possession, and so shall the Creditor recover, and have judgement to be satisfied out of the Testators goods, as in his hands.All must sae. 19 H, 6. 65. conte. And therefore if goods be taken from one,24. E. 3. 40. & 42. E. 3. 26. It may be in his name only from whom taken; nor need he be named Executor Bro. Ex. 31. 39. H. 6. 4 [...]. all may maintaine an Action of Trespasse thereupon; for the possession of one is the possession of all. But the possession of one shall not be, so the possession of all, as to charge the others owne goods wherof more elsewhere.F

Where two Executors be made,G the one making a Will and executors, and dying; if the other die after intestate; now shall not the Executor of him who first dyed be Exe­cutor to the first Testator,32. H. 8. Bro. [...] 149. but hee is dead in­testate,39 H. 6. 45. because the surviving Executor is so dead; and in him the Executorship was wholly, and soly setled by the death of his [Page 122] fellow before him: So Administration, de b [...] ­nis non admin. shall be committed.

The Executors, or Executor, if but one so represents the person of his Testator,Co. lib. 5. [...]. 97. that hee is in Law his Assignee by the very making of him Executor;H so as if one covenant to make a Lease to I. S. and his Assignes by such a time,Chapman & Dal­ton [...] case. Plo [...]. and I. S. dieth before that time, and before the Lease made; now must the Lease be made to his Executors as his Assigne, repre­senting his person; so also in a condition to pay to the Feoffor or his Assignee, yet a Lease to A. and his Assignes during the life of B. shall not goe to the Executors of A. Sir Edward Phit­t [...]t case, Co lib. [...]. f, 80. So where in a generall pardon by Parliament, there is an exception of persons outlawed after judge­ment,A unto the person so out-lawed,So where the stat. of W. 1. gives time for proofe to him whose goods were wrested. His Executors may doe it, if he dye before the time. Co. l. 5. 107. b. shall sa­tisfie the Creditor, who hath out lawed him. If the Out-law die before this done, his Exe­cutor as representing his person, may make satisfaction, and so make the benefit of the pardon to extend to his Testator, for saving his goods, as if himselfe had satisfied his Cre­ditor,Co. lib. 6. f. 80. though he left him unsatisfied, when he left the world,Also Executors shall have resti­tution of stolne goods, and a Writ of Error; yet the Statute speakes but of the party. & d. em obiit extremum. Yet where A. sold Land to B. upon Proviso, that if he payed [...]o B. his heires, or assignes, &c. B. died, A. payed at the day to his Executor, and it was doubted that it was not good,H for [Page 123] the word Assignee could not reach to him being no Assignee of the Land:2▪ [...]. Dy. 1 [...]0. and where the Executor brought an action of account upon a receipt by the hands of the Testator;Conte. where to pay to A. the Feoffer his heire or assigne. Co. lib. 5. f. 97. the Defendant could not be admitted to wage his Law;2 Eli. Dy. 18 [...]. for that this was held a receipt, per au­termains; yet it is cleare, that if one by Bond or Covenant tye himselfe to pay such a summe▪ at such a day, not mentioning his Executor at all; yet is the Executor bound, as included in the name or person of the Testator. And where the Statute 23.3. Eliz. Dy. 201. of Henry the eight, gives the Writ of attaint (in the course there mentioned) against the party that had judge­ment, it lieth against his Executors if hee be dead;H but thereof another reason is given.27. H. 8. 16. where a man was bound, that hee would not sue upon such a Bond, and he dyed, and his Executor sued; this was held to be no forfei­ture of the Bond. So where one was bound to pay ten pound within a moneth after re­quest made to him,M. 15, & 16. El. and hee died before request;I it sufficed not to make it to the Exe­cutor,34. El. vel circite Titherley & Le [...] ­cor Walsh. in ba. reg. as Manwood said. It was likewise held that the warrant of Atturney put in for the Plaintiffe in debt,I sufficeth not for his Execu­tor to bring a Scir [...] Fac. upon the judgement. And if Executors sue execution upon a Sta­tute in the name of a Conusee,36. H▪ 8. Bro. stat. Marchant. 43. as if hee were alive,K this is voyd,2. R. 3. 8. and they may sue out new [Page 124] extent, and this they may doe without any Scire facias, H I as well as the Conusee might, if he had beene alive.15. H. 7. 14. But by Hussey Justice,F if the Conusor in a Statute staple be returned dead by the Sheriffe upon the extent;15. E. 3 [...] Respond. 1. conte, upon a Stat. Marchant. a Scire fac. must be sued out before extent proceed; and upon a judgement had, if the recoverer dye before execution, his Executor cannot as himselfe might,K sue out execution without a Sci. fac. as is there said. [...]nte No [...]. 207. upon a Re­cogniz. Yet if after a Ca­pias ad sat. awarded,I. the Plaintiffe dye be­fore it be executed, the Sheriffe may proceed to the taking of the party, and is not subject to any action of false imprisonment, nay, if he suffer him to escape he is chargeable,H as temp. Elizabeth it was resolved upon the motion of Anderson; [...]0. Eliz. tot. 31. in ba. reg. but withall it was held that reliefe might be by Audita querela. Like resolution was in the Kings Bench, After some doubt by Wray, and the other Judges, where the Defendant dyed after a Fieri fac. awarded, and before it was executed, that the Sheriffe might proceed upon the Goods in the hands of the Executors.

But if the Defendant in an action of debt, upon a bond plead a tender at the time and place of payment,I. and tenders the money in Court, where it rests and then he dyes; now shall not the Plaintiffe, have this money, be­cause the property thereof is changed, and [Page 125] become the Executors, as was held in the Common pleas,P but he is put to a new suite against the Executor.32. Eliz. vel cir­cite. Yet where judgement is once given in a Writ of Partition,I for a ter­mer, or in a Writ of Account, if the Plaintiffe dye before the second judgement needfull in both cases,Pas. 28. Eliz. the Executor is not put to a new suite, but may proceed by Sci. Fac. upon the former judgement, as the Lord Anderson held upon the motion of Fenner Serjeant. Though before we found the Executor not in points penall,H all one with the Testator, yet in points beneficiall, the Testator includes him in some cases, as where an Abbot granted to his Lessee to take Estovers in another ground, it was held that his Executor though not na­med should enjoy this, during the terme as well as himselfe should have done. And whereas the Stat. 23. of H. the 8. gives costs to a Defendant against a Plaintiffe, suing for a wrong, or breach of promise, or the like, done to the Plaintiffe against whom it passeth by verdict or nonsuit;Tri [...]. 36. Eliz. in ba. r [...]g. it hath beene resolved that an Executor suing upon such wrong o [...] breach,H M of contract to his Testator made should not pay costs because he is another person then the Testator; and so is it usuall in experience. But if in such suite, the Attur­ney of the Executor mis-behave himselfe to­wards him,Pa. 41. Eli. in com. ba [...] and for this the Executor sueth [Page 126] him, here if it passe against him in mannēr as aforesaid, he shall pay costs, because this was a suite for a wrong done to himselfe.

If A. recover a debt as Executor of I. S. and makes B. his Executor,I and dye before execution sued, B. is not put to new suite, but may have execution upon that Judgement: But if A. or B. dyed Intestate, [...] 2 [...] ▪ H. [...]. now could none as Administrator to either of them, nor as Ad­ministrator of I. S. have execution of this Judg­ment; for the former hath no interest in any thing partaining to I. S. and the latter com­meth to title above the judgement, viz. as im­mediate administrator to I. S. who is now dead intestate: and derives no title from the Exe­cutor, who recovered.

If a Conusee have a Certificate into thē Chancery,2. El [...] Dy. 180. upon a Statute, and then dyes, be­fore extent taken out,I his Executor is put to a new Certificate, and for obtaining of it, must make Affidavit, that no extent hath yet been taken out.

If an Alien joyne with his Wife,M who is Executor in a suite for debt, and it commeth to Issue, he shall not have tryall per medietatem alienig. or Linguae as should be if he otherwise were party to a triall, as was held in the case of Doctor Iulio. Yet if a noble man sue as Executor to another, not noble, he shall for his nonsuite be amerced five pound, as if he [Page 127] sued in his owne right, as was conceived 21. E. 4. 77. By the same rule and reason doubt­lesse a Noble man sued as Executor, shall not be arrested, nor shall any Capias be awarded a­gainst him for not appearing. And if any triall shall be of any issue, there shall be two Knights of the Jury, as in other cases where a peere is party. Likewise where the Wife is to have her convenient apparell, whereof the Executor must not bereave her; If she be a no­ble woman, it shal be answerable to her degree

If one Executor or onely sell goods of the Te­stator,A he alone may mainetaine an Action of debt for the money.38. E. 3. f 9. So if goods be taken out of the possession of one Executor,N hee alone may mainetaine an action, and that without naming himselfe Executor.

Some touch hath beene before of Sum­mons,P and severance, whereabout be this ad­ded.O 3. H. 7. 1. & 5. E. 2. Fitz. bre. 802 Conte, 38 E. [...]13. & 20. E. 3. tit. ac­co [...]nt. 78. If one Executor will not, or cannot joyne in suite with the other, so as he is summoned and severed, now by his death, after the suite is not abated, 16. Ed. 2. Fitzh. 111. yet if he live till judgement, he may sue execution, say other Bookes, 13. Ed. 3. Fi [...]zh. Exec. 9. 11. R. 2. Priviledge 2. yet Que. of that for he can­not acknowledge satisfaction, as hath beene since resolved. Mich. 14. & 15. Eliz. Dy. 319. And the reason thereof being because he is no party to the judgement, by the same reason [Page 128] can he not sue exēcution upon it, for how can he have execution for whom there is no judgement given, now the recovery is onely in the name of the other Executor, yea, by the said last Booke, it seemes that after judgement had, he cannot release the debt, because it is now altered in nature, and turned in rem judi­catam, though at any time before judgement he might have released it as both that last booke saith, and the two precedent temp. Ed. 3. Rich. 2. yea in an action of account, after judgement had, that the Defendant shall ac­count, the release of him severed, is a good discharge to the Defendant, as was resolved 48. Ed. 3. 14, 15. but this is not a plenary judgement, for nothing is recovered thereby but another judgement is to be had after the account, which may be against the Plaintiffe, so as this release came before any debt or du­ty adjudged. What if the Defendant be had in execution at the suite of the Executor, who prosecutes it, and escapeth; whether may the severed Executor discharge the Sheriffe or Jaylor by a Release, I thinke he may not.

By that above it is plaine, [...] that if any one of the Executors Plaintiffes dye, the Writ is a­bated, onely where he so dying was before severed; [...]. H. 4. f. 14. opinions have beene different, as a­bove appeares. So also is it, if one of the De­fendants Execntors dye. Yea, if the Plaintiffe [Page 129] Creditor sue A. B. & C. as Execu [...]ors, where onely A, and B. are Executors, there by the death of C. the Writ abates, or falles to the ground,P yet A. and B. as I thinke might have pleaded in abatement,9. E. 4. 1 [...]. Bro. 34. that they onely were executors, traversing that C. was not Execu­tor, but the Booke doth not so resolve. See 46. E 3 f. 9. 10.

As A. and B. above might admit that Writ against them and C. A So if the Writ or sui [...]e had beene against A. onely, and he so admit it not pleading in abatement, the recovery a­gainst him alone is good 9. E. 4. 12.

One that is Out-lawed or attainted in his owne person,21. H▪ 6. 30▪ may yet sue as Executor,M because this suite is in anothers right,21. E. 4. 49. 69. viz. the Testa­tors:42. E. 3. 13. But he that is excommunicate cannot proceed in suite as Executor,14. H. 6. 14, 15. because none can converse with him without being excommu­nicate,3. H. 6. 40. Lit [...]. 44. Co. lib. 81. 69. 11. R. 2. Excom. 25. as a Booke sayes. Yet doth not this ex­communication pleaded, abate or overthrow the suite, but make that the Defendant may stay from answering his suite, untill the Plain­tiffe be absolved and discharged from his ex­communication.

Of the Possession of Executors, or their actuall Having.

  • 1. What shall be said, so to come to their hands, as to charge them.
  • 2. What shall be such a getting, or going from them, as to excuse them.

WE have before considered what things shall come to Executors, and being come shall be Assets in their hands. Now for that it is said in Reedes Case, that an Executor shall not be charged with,Co. lib. 5. or in respect of any other goods than those which come to his hands after his taking upon him the charge of the Executorship. Let us now examine what shall be said, and accounted such a full and compleate comming to the hands of Exe­cutors, as shall make them within the reach and charge of Creditors, and Legatees, viz. For the payment of debts and Legacies. As touching debts due to the Testator, it hath before beene shewed, that untill Judgement and execution had; they bee not Assets in the Executors hands. Now then, as touch­ing [Page 131] other goods or chattels possessory, which are of two kindes, viz. reall, and personall: Let us put the Case thus. The Testator at the time of his death hath a flocke of sheepe in Comberland, Corne in the Barnes in Cornewall, Bullockes in Wales; fat Oxen in Buck [...]sh [...]re; Money, Household-stuffe, and Plate in Lon­don, a Lease for yeares in Norfolke, and his Executor dwelt at Coventry, viz. farre from all these places, what kinde of possession shall the Law judge this Executor to have in every of these, instantly upon the Testators death, and before he come where any of the things be, either to see or seize upon them [...] In all the particulars above mentioned the Law is all one, except the Case of the Lease for yeares, which if it be of Land (as is most usuall) then because it is a setled and immoveable thing; the Law doth not reach to it the foote of the Executor,P [...]k. C. b. to put him in actuall possession, for Possessio est quasi pedi [...] positio) untill himselfe, or some for him do actually enter therupon. Nor indeed need the Law helpe o [...] supply the want of actuall possession in this Case, as in the case of moveables; since Land cannot be carried away as goods may, and therefore is not sub­ject to purloyning or imbesilment as movea­bles are. But if the Lease for yeares, were of Tithes, the Executor, though in never so remote a place from them, shall be instantly [Page 132] upon the se [...]ting out thereo [...] in actuall possessi­on of them,45. [...] [...]. [...]7. so as he may mainetaine an acti­on of Trespasse against any stranger which shall take the Tythes set ou [...],21. H. 6. 43. though he, nor any for him did ever befo [...]e p [...]ssesse any of the said Tythes, or came neere unto them. But if the case were of a Lease for yeares of a Rect [...]ry consisting not onely of Tythes, but also of Gleabe Lands, into which entry may be made, as also Livery of season in it, then it may perhaps be some question, whether such an actuall possession in Tythes, shall be given by the Law to an Executor, neglect­ing to enter or not entrying into the Gleabe Land. And so I leave the consideration of Chattells Reall,

Touching things Personall, in which the Executor hath such an actuall possession, [...]. E. 4. 50. pre­sently upon the Testators death, [...]low. com. 281. as that he may mainetaine an action of Trespasse against any stranger taking them away or spoyling them,3 [...]. H. 6. 13. though he nor any for him ever came neere them:14. H. 8. [...]. whether yet this shall be such a possession in the Executors, and such a com­ming of these Goods to their hands, as to charge them with payment of debts and Le­gacies, yea to make their owne Goods lyable instead of these, is a point worthy of consi­deration.

And doubtlesse, this throughly sifted, will [Page 133] prove a case mischievous, whether way so­ever the Law be taken, for first it must be ad­mitted that without the Executors laying his hands actually and particularly upon the Goods in the House or Fields of the Testator, whether the Executor hath resorted, he shall be said so in possession, as to stand lyable un­to the Creditors, so farre as they extend in value, though after, others purloyne or im­besill them. Now then if distance of place shall make difference, where shall be the bound and limit of that distance, and if the Executor may come at a strangers taking or possessing of the Goods, it is mischievous to Creditors.

On the other side, if it shall be said upon the Executors to answer for all the Goods whereof the Testator dyed possessed, it will be mischievous for them and deterre them from taking Executorship upon them, fince much purloyning, may be even of money, Ie­wells, and Goods by Servants and others, about the Testator, or where these things be. I thinke therefore, that if without any fraud, collusion, or voluntary conniving on the part of the Executors, they be prevented by o­thers, of laying hold on the Testators Goods, so as that they may dispose of them; especi­ally, if it cannot be knowne by whom they are so purloyned, and imbesilled, or if they [Page 136] be persons fled, or insolvent, that then they shall not stand upon their score, as Goods come to their hands, in respect whereof, Cre­ditors or Legatees shall draw so much from them, even out of their owne Goods, as in other cases where they have, no such excuse shall be.

And of this minde I the rather am,33. H. 6. c p. 1. because I finde the whole Realme in Parliament, take­ing notice of such prevention of Executors, comming to the Goods of their Testator, by the wrongfull act and imbesilment of others, without any default in themselves. And in this Case the Parliament hath given speciall remedy, viz. that Writs shall be directed to Sheriffes, to make open Proclamation for the appearance of the parties delinquent in the Kings Bench, at the day limitted, and in de­fault thereof they shall be attainted there of felony, the Writ being returned executed, viz. Proclamation made. But note that this Proclamation is to bee made two Market dayes, within twelve dayes next after the Delivery of the Writ, and the last Procla­mation must be fifteene dayes before the day of appearance. And these Proclamations must be made in such Cities, Burrowes, or Places (saith the Statute) not expressing what is meant by the word such, and there­fore, meaning doubtlesse those in which the [Page 137] act or offence is committed. So that if the fact be not committed within the limits of some City, Burrow, or Market Towne, no remedy is to be had by the Statute; for that the Pro­clamation is to be made upon Market dayes, in the place where, &c. Now besides other Places, even some Burrowes, viz. Townes, sending Burgesses to the Parliament, have no Markets, and so are no Places within the Act. Also two Executors must require this Writ, therefore where there is but one Executor, no reliefe is given by this Law, for it is penall, making felony, and therefore shall not be ex­tended by equity beyond the Words. Last­ly, it extends but to the Executors of Lords and Persons of good degree, and onely to the Trespassing servants of such Persons, not to other strangers, purloyning the Goods. But now who shall be said to be Persons of good degree, not being Lords, I will not much labour to decide, the rather because I have not heard, nor read, to my remembrance, of any Action brought upon this Statute, but I thinke that good degree must stay either at a Knight, being the lowest dignity, or at a Gentleman, being a degree of Worship, as elsewhere is shewed, and not stoope any lower.

And the said Statute seemes in some sort to imply an opinion this way, which I incline, [Page 136] in that it expresseth this purloyning to be an impediment of the execution of the Will, whereas if the Executors sh [...]ll answer and make good to Creditors and Legatees, out of their owne state and Goods, for these im­besilled, the execution of the Will is not hin­dered, but the Executors are damnifyed in their owne private va [...]ue, yet it may be said on the other side, that some things given in specie by the Will, such a peece of Plate, such a Furniture of a bed or Chamber, such a Je­well may be purloyned, so that the Lega­tees can never have them, and consequently the execution of the Wil be hindered, though some recompence be made by the Execu­tors, but how these Legatees shall recover re­cōpence in such cases; for that Legacies are not to be recovered by Suite at the Comon Law, I must leave to the Professors of the Common or Civill Law to informe. But if the Exe­cutor be of secret assent to this imbesilment, whereof even the forbearance to sue for the recovery of the things, or the value of them in dammages, if knowne where they, or the im­besillers bee, is a shrewd evidence, or proofe, Then shall the Executor be adjud­ged an haver of them, and so stand charged as having them, for Propossessore habetur qui dolo desi [...]t possidere. And if in any Case the taker by prevention from the Executor be­fore his knowledge perhaps, of the Testa­tors [Page 137] death, or at least, before his possibility of repaire to the place, where the goods were, to put them in sure Custody; if I say, such actor keepe these goods from falling upon the shoul­ders of the Executor, they shall surely fall up­on himselfe, and make him chargeable at the Creditors suite, as an Executor of his owne wrong.

Of Goods lost by or (But put we the case) gotten from Executors (for thereunto shall be our next step) that Goods come fully into Executors possession and hands, but be againe lost or gotten from them without any default in them; Shall they yet stand answerable out of their owne Estates for them? Surely herea­bout two distinctions mustbe made as I take it.

The first whereof I derive from our learning touching escapes of persons taken in Executi­on, and imprisoned, if such be rescued by Alien enemies,33. H. 6. 1. the Sheriffe or Gaoler shall not answer out of his owne Goods for this debt,16. E. 4. 2. 3. otherwise if it be done by Subjects,7. Eliz. Dy. 24 [...]. against whom remedy is to be had by the course of Ju­stice: and so should I thinke it to be touching Executors, viz. that if enemies landing (as neere the Sea Coast may easily, and often hap­pen) shall take away Cattell, or Goods from an Executor, hereby he shall be excused, con­trariwise ordinarily, if the ereption or direpti­on, be by subjects knowne and actionable. [Page 138] Another difference I shall thinke may proba­bly be taken from the rules of our learning touching Bailement. If A. deliver Goods to B, to keepe as his owne, or genererally, viz. without any speciall undertaking by B. to keepe them safely, and without any money or other valuable consideration, given for the safe custody;Vide [...]9. As. p. 28. 8. E. 2. Fitz. Here if B. be robbed of them, he shall not make satisfaction to A. for them; [...]. 59. 9. E. 4. 90. 13. H. 7. 4. and so if they be stolne from a Servant,Co. lib. 4. f. 83, 84 or Fa­ctor. But if they be taken away by a knowne Trespasser, not feloniously, some opinion hath beene, that the Keeper shall make recom­pence, because he hath remedy for recom­pence, or satisfaction from the trespasser, yet of this latter I should doubt, because A. him­selfe as well as B. may have this Action for dammages against the Trespasser. Now an Executor is of the nature of such one having the custody of another mans Goods, and I have seene in a manuscript entire, the Writ of Trespasser by the Executor, [...]. expressing goods of the Testator in the Custody of the Execu­tor to be taken from him; therefore me thinkes he should no otherwise be charged then B. to whom Goods were as above is said delivered to be kept. For the Executor haply shall have no benefit nor advantage by the Executor­ship, all the Goods not sufficing perhaps to pay debts, and Legacies, which is the state [Page 139] we most thinke of, viz. where Goods want to pay debts, and Legacies, for where there wants not, the question need not be made. Yet a servant or Factor, who hath wages for his service, is not thereby made lyable to sa­tisfie for things in his custody stolne, because he hath not for this particular custody, any compensation, so of an Executor, if perhaps benefit might accrue to him by the Execu­torship, as happely the discharge of a debt owing by himselfe, &c. Other Cases there be, wherein the Executor will stand more clearely discharged. As if the Testator left a Lease for yeares, state by extent, wardship, or other Goods whereto he had but a defesible title, and they be evicted after his death. So if he left a Ship at the Sea with much Goods and Merchandises, which are drowned in the returne, never arriving in safety.

So also if he left a flocke of sheepe, tainted with the rot, which dye shortly after him, in none of these three Cases doubtlesse shall the losse fall upon the Executor. But to put a Case of more doubt, what if a Lease for yeares come to an Executor, subject to a Condition for payment of Rent, or a summe in grosse, and the Executor failes in payment, whether shall this losse fall upon the Executor, to be made good to Creditors, or Legatees out of his owne substance, or not? To this I must [Page 140] answer by this distinction, viz. If the Exe­cutor had taken the profits of this Land so long as to furnish him with money for this payment, or if he had other Goods of his Te­stators in his hands to supply the payment, then is it his default that the money is not payed, and he must beare the smart thereof: otherwise not, for he is not bound to make payment out of his owne Goods, [...]. yet is he a sullen and unkinde Executor who will not so doe, when as he may repay and satisfie him­selfe by the profits thereof after. Like Law if the Executor suffer a bond of a hundred pound to be forfeite, for not paying of fifty pound, having sufficient in his hands. So also of a Recognizance, Statute, or Judgement, defea­zansed upon payment of a lesse Summe; yea, a lesse doubt of all these Cases, then of the forfeiture of the Lease for yeares, for haply the Executor had time to have sold the Lease, and made money thereof, towards the pay­ment of Debts, the omission and neglect whereof may be imputed unto him as a default justly occasioning recompence to be by the Law required from him. But perhaps he may excuse himselfe that he could not find a Chap­man who would give him to the value thereof: hereunto yet reason can easily reply, that it had beene much better to have sold it under the value, then to have lost the whole value, [Page 141] by exposing or abandoning it to a totall for­feiture.

How farre, and where an Executor having Assets is chargeable or lyable to Action.

HAving considered what things shall come to Executors and be As­sets in their hands, for the perfor­mance of the Will. Let us now consider what thing the Executor is bound to pay, satisfy, or performe, and what not, where he is chargeable, and where not, this being admitted, that he hath Assets, viz. sufficient wherewith to performe.

Here we will consider of these parts.
  • 1. Of Debts by Specialty or Record.
  • 2. Debts or duties by Contract without Specialty.
  • 3. Debts without either Contract or Specialty.
  • 4. Covenants by Deed or Specialty.
  • 5. Wrongs done by the Testators.

TOuching Debts by Specialty, which are the most usuall and common obligements, [Page 142] it will not be impertinent to give a little light touching the validity of a Specialty, and the extent of it to Executors. The most doubt will arise upon Bills, and such Writings, Ob­ligatory made, not by Scriveners, nor Clarkes, in common forme, but by others, otherwise for haste, or through simplicity. Thus long since we finde a Writing made by A. to B. Me­morand. 21. E. 4. 22. that I have received of B. ten pound, which I promise to pay, &c. This being sea­led and delivered, was held a good Obligati­on by Brian and Catesby. So if the words had beene onely, I shall pay to B. ten pound, and whether such words or the like, as Covenant, or Grant to pay,29. R. 2. F. D [...]t. 166. be in the forme of a Bill or Bond, or in an Indenture or Articles, it is a sufficient ground for an Action of debt.9. H. 6, 7. 2. H. 4. 8. 23. Eli. M. 5. And though it should be miswritten Wigint. for vi­gint. or fi [...]teene for fifteene, yet shall it be favourably construed, and held a good speci­alty of debt, as hath beene resolved in these and like cases; and so also notwithstanding, false Latine in the Obligation,9. H. 7. 16. or the plurall number for the singular number,2. H. 4. 8. or words of repugnancy or non-sence, yet if there be words whereby it appeares that A. 28. H. 8. Dyer. 22 is a debtor to B. and it be sealed and delivered, it is a good wri­ting Obligatory; yea though it want the words of conclusion,28. H. 8. Dy. 19. & 22. viz. in witnesse whereof as the Lord Dyer reports, to have beene resolved, al­though [Page 143] the contrary were held in foure severall Kings times before as our Bookes shew.40. E. 3. 1. 7. H. 7. 14. 8. H. 6. 36. Now any such Writing Obligatory doth determine or drowne any duty by Contract,22. H. 6. 15. because Spe­cialty is of a higher nature,21, E. 4. 81. So as if A. and B. doe bargaine with C. to pay him a hundred pouud for Corne or other thing,3. H. 4. 17. and after C. take some such Writing Obligatory,11. H. 4. 7 [...]. as afore­said of A. now by this is B. discharged of the debt, because he stood charged onely by the Contract, which is extinguished by the said Specialty.

As for the extent and operation of these Specialties,So reservation of rent, grant of annuity. to, and upon Executors, we must know that an Executor doth so represent the person of the Testator,28. H. 8. Dy. 14. & 22. and is so included in him, as that every Bond or Covenant by the Testator made for payment of money, or the like, reacheth to the Executor, although he be not named, viz. that he doth not Cove­nant for,47. E. 3. 22. nor binde him and his Executors by expresse words (and yet the Heire not named is not bound,32. H. 6. 32, 10, H. 7. 18. though there be never so great Assets, or Land discend unto him.)

Now touching debts upon Record, much need not to be said,No mention of Executor in the judgement, yet he charged. (except of those by Sta­tute Marchant) for to debts and dammages already recovered against the Testator, and to debts by Recognizance the Executors liable­nesse, is somewhat cleare and conspicuous. [Page 144] Yet other inferior debts upon Record, may fit­ly be thought of, as Issues forfeited, Fines im­posed by Justices, at Westmin. or at Assises, Quarter Sessions, Commissions of Sewers of Bankrupts, By Stewards in Leetes, or the like, for all these are debts of Record, which Exe­cutors stand charged withall. So also if the Testator were before Auditors found in Arre­rages of Account,9. H. 6. f. 11. being a Bayly,11. H. 4. 64. 92. or receiver: For these Auditors are by Statute Judges of Record,Otherwise of a Garden in Soc­cage, he is out of the stat. w. 2. cap. 11 ut [...]. C [...]. lib. 10. 103. but if the Account were made onely before the party to whom the Arrerages pertai­ned, or but before one Auditor onely, it is out of the Statute, which speakes of Accounts before Auditors in the plurall number. There­fore the Executor not chargeable, because the Testator might wage his Law in those cases, not in the former.

And whereas exception was before made of a debt by Statute Marchant, it was by reason that the Lord Bro. tells us that if the conusor in that case be returned dead no remedy appea­reth for the Conusee to have execution of the Goods of the Conusor,36. H. [...]. [...]. but onely of his Lands. [...]. Ma [...]. 43 If this should be thus, it were a very mis­chievous case: for many bound in Statutes have no Lands but Leases and goods of great value, and if by their death, their Goods and Chattells should be set free from this Statute, and the Creditor without remedy, the Law [Page 145] were very defective: and it were so much the more strange in this Case, because the Statutes of Acto [...], Burnell, and Mercatoribus, seeme to pitch principally upon Goods, and to tend unto assurance betweene Merchants, who usu­ally are not Landed men. But that the Law doth give remedy in such Case, as well against the Goods as Lands of the deceased Conusor appeares by the resolution of late, made in what Order, and Precedence, Statutes are to be satisfyed by Executors, as after wee shall see.

Of Debts by Contract without Deed, as Leases Paroll, &c.

COntracts are of diverse kindes, and we will begin with those in the realty, as most worthy. If therefore one be Lessee for yeares, or for life, without any Indenture or Deede, (as he may be) and his Rent being behinde,21. H. 6. 1. he dyeth,44. E. 342. now is the Executor lyable to the payment of this Rent, without any Specialty, for that his Testator, if he had beene sued in his life time,44. E. 3. 5. could not have waged his Law. But if the Less [...]e for yeares,7. E. 3. 11. in his life time, sell or grant away his terme or Lease,14. H 7 4. pe [...] Keble vide 8. E. Dy. 247. al­though he still lye at the stake for the Rent, to grow due after, untill the [...]essor accept the As­signee for his Tenant, Yet if the Lessee dye, [Page 146] his Executor shall not be charged for any Rent due,M. 32. & 3 [...]. after the death of his Testator. But what if the Lessee doe not Alien or assigne his terme,Eliz. in com. [...]a. but dye thereof possessed, and the Ex­ecutor perceiving the Land not to be worth the Rent, Waiveth the same. Yet the Lessor will not enter thereinto, nor intermedle there­with, whether may he yet charge the Execu­tor with the Rent, [...]. & S [...]n. [...]22. during the terme? I answer that if he have assets, that is sufficient for pay­ment of this and other debts, he cannot Waive this Lease, but shall be tyed to answer this rent, though much more then the Land is worth, for the taking of the Lease is much of the na­ture of an Obligation to pay money; Yet be­cause it is yearely Executory, the Executor may Waive it, in case his Testators estate will not supply and beare that losse. But what if there be assets to beare this yearely losse for some yeares, but not during the whole terme? I think in this case the Executor must pay the Rent, so long as this Assets will hold out, and then must Waive the possession, giving notice to the Re­versioner; and this I thinke he may doe well enough notwithstanding his Occupation of the Land divers yeares after the Testators death, because that was not voluntary, but as of necessity; yet this I leave as a Quaere, to be well advised of with good counsell.

Of contracts personall.

VVHere the Testator might wage his Law there the Action lyeth not a­gainst the Executor;41. E. 3. 13. as hath beene touched,15 E. 4. 25. and therefore he is not chargeable in an action of debt upon a simple contract,Except by a [...] ­minus in the Ex­chequer, for the Kings debtor. Co. lib. 9. f. 98. So of accounts ex­cept for the King. as by reason of this or that to his Testator; yea though it were the Inheritance of Land, which was sold so as the sale were without Deed, or though by Deed, yet if no counterpart were under the hand of him to whom the sale was made. And the custome of London, M. 33. & 3 [...]. El. in com, ba. By three Iudges, & 37. Eliz. By all, as I finde in my report, but Co. lib. 5. f. 82. b. it is contrarily re­ported. to the contrary, viz. that an Action of debt should be maintained a­gainst Executors upon a contract was held void at least no Good plea against other Creditors that such a debt was recovered against the Ex­ecutor, or paid by him, as was towards the latter end of the late Queenes time resolved,3. Eliz. Dy. 196. Demu [...]er. though in the beginning of her time it was a demurrer.9. E. 4. 51. 10. H. 7. 8. 15. E. 4. 16. Yea, though such a debt grew for the most necessary thing,22. H. 6. 13. viz. meate and drinke,3 [...]. H. 6. 186. which bindeth even an Infant to pay­ment,There though a common hostle: or victualle [...], trust his guest, he loseth his debt by his death. Co. 9. f. 87. b. yet will it not charge the Executor of a man of full age, but this is meant where the contract was onely by Word, for where the Testator putteth his Seale to any Deede or Writing made upon such sale, this is more then a simple Contract, and taketh from the [Page 148] Vendee his wager of Law, and so chargeth the Executor.12. H. 4. 21. But if the Testator seale but unto a tayle or tally,But if the summe be also written on it, they are bound as by a Dee [...]. 8, li. 8. Dy. 23. [...]. with scotches, expres­sing a de [...]t, this is no such Specialty as shall cha [...]ge Executors. Yet in some Cases with­out any seale at all, the Executor is chargeable. But although no Action of debt lyeth against the Executor upon such a simple contract, yet may the Creditor,Slades Case, [...]. lib. 4. in that case, maintaine an Action upon the Case grounded,Co. l 9. 87. [...] Case. upon the assumption implyed, though not expressed, as now standeth resolved by all the Judges of all Courts at Westminster, though heretofore there hath beene much difference of opinion there­about: And indeed thus the Executor is char­ged, in matter for a simple contract, though not in manner of a Debt; but as for breach of pro­mise, making recompence in dammages, in­stead of the debt. And the chiefe reason, for it is because the Testator could not have wa­ged his Law in this action upon the case a­gainst himselfe, [...]. though in debt he might. Where the Testator retaineth servants in Hus­bandry, or otherwise, and dyeth, there being wages due to these so retained, the Executor is lyable to an action of debt for the same, by reason that the parties were compellable by Statute,4. H. 6. 16 thus to serve, and therefore the Te­stator could not have waged his Law; but in case of Servants not compellable, as Wayters [Page 149] or Servingmen, as wee call them, no action of debt lyeth against the Executor,11. H. 6. 48. [...] for their wages,2. H, 4. s. 14. Ser­vitors in the warre by con­tract. though against the Testator himselfe it doth: for the Contract is sufficient to charge him who made it. See of account after.

Where Executors shall be charged without either Contract or Special [...]y.

VVHere a Prisoner oweth money to a Jaylor,27. H. 6. 4. or Keeper of Prison for his dyet,1 [...] E. 4. 16. Co. lib. 9. f. 87. b. or victualls, and dyeth, his Executor shall be chargeable for this debt, because it is for the Common wealth to have Prisoners kept, which cannot be without affording them victualls:Ne. n. br. 12 [...]. a. Also,He must have a liberate also. where one hath a Pattent, or Tally of the Exchequer, to receive money of some Customer, Receiver, or other Officer of the Crowne,27. H. 6. 4 b. and delivereth it to him, he then having money of the Kings in his hands,1. H. 7. 17. if he pay not the same,2 H. 7 8. 9. but dye,Cla [...]ke of the Hamper. his Executor shall stand chargeable with the payment there­of.10. H. 6. 24. 25. So for Arrerages of Account before Au­ditors, if more then one, but this is debt of Re­cord in Law.

So if any Lord of free Tenants, doth levy ayde of them for the marriage of his eldest Daughter,N [...]. na br. 82 83. and he dye before she be marryed,Westmin. [...] she may recover this money by an action of debt against his Executor, but this is by ver­tue [Page 150] of a Statute. There is a president in the Booke of Entries of an Action of debt against the Executor of an Heire,Lib I [...]r. 172. b. 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.P [...]g. [...]rig. 141. a. 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, [...]. [...]. 2. 16. E. 2. 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, 11. [...]. 3. Fi [...]z. [...]x. 77. in the time of Edward the third. But Ald. opposeth him.S [...]c Co. lib. Intr. 564. Such an action in Yerke shire, 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 [Page 151] to be in Law bonds, that is, Writings Obli­gatory, whereupon an action of debt may be brought,circitr. Andrewes & Els [...]rigge [...] 33. Eliz. 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.Pas. 33. Eliz. inter Bo [...]. & Au­stin in com. ba. Quare, if both be to be done by the covenanter viz. ten pound if not five such a day. So in [...] Case. 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,But where the Lessor did Co­venant to pay the quit-rent, Di­vers Iustice [...] thought the Ex­ecutor, not na­med was not bound. 1. & 2. P. &. M. D. 1 [...] 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 [Page 152] beene, and touching the latter, viz. of pay­ing Quit-rents,Note the Case is [...] supra in marg. 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,Pas. 38. Eliz. in ba. reg. 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,Co. lib. 5. f. 24. and so both Executor and Assignee bound to performance; but in that case it was said by Popham Chiefe Justice,Resolved P. 39. Eliz. But not ad­judged till M. 43. & 44. Eliz. 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 [Page 153] then upon the Land let, or to doe any other collaterall thing, not pertinent to the Land l [...]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 Te [...]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,H. 8. [...] There the house was to be buil [...] upon the Land leased and yet [...] seem­ed of a [...] opinion in an action of Covenant, as both Shelley and F [...]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 [Page 154] of 32. Henry 8. or not warrantable by it, sets downe the opinion contrarily,T [...]. 22. Fl [...]t 459. inter & B [...]deridge W [...]ndsor. 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,Noke & Anders case. 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 [Page 155] any other title, giveth cause of Action, or bin­deth the Lessor or his Executor, to make re­compence.

Of wrongs done by Testators, and whether Exe­cut [...]rs be lyable to amends.

ALthough Executors doe represent the persons of their Testators, yet if the Te­stator commit any trespasse upon the Goods of another, or upon his person, of Lands no action lyeth for this, against the Executor, for Actio personalis moritur cum persona; 41. Ass. p. 15. So if a She­riffe,40. E. 3. Fitzh Ex. 74. Co. lib. 9. f. 87. [...]. Jaylor, or keeper of Prison, suffer one in execution for debt or dammages to escape, though hereby the party, at whose suite the Ex­ecution was, be intitled to an action, viz. an action upon the case, against such Officer, by the Common Law, and by Statute an action of debt; yet if he so suffering dye, for that such sufferance was a wrong of the nature of a tres­passe, no action lyeth against his Executor for the same. And upon the same reason, as I presume, if one carry away his Corne, and Hay, without setting out the Tenth; although the treble value be recoverable against him in an action of debt, yet if he dye before such re­covery, the action is gone, and lyeth not a­gainst his Executor; No not although the Testator were a Lessee for yeares, so as his [Page 156] state came to his Executor.

Like Law in other penall Statutes, as for arresting one at the suite of I. S. without his privity or assent; Or, for not appearing as a Witnesse, being served with a s [...]b poena, and having charges tendered and many like; yea, if a Lessee for yeares commit waste and dye, no action lyeth against the Executor for this waste; for all these cases are within the rule of actio personalis moritur cum persona, and many other like Cases might be put, but these may suffice. Yet if a Parson, Vicar, or other spiri­tuall, or Ecclesiasticall person doe suffer a ruine or decay of the houses or buildings up­on his such spirituall Benefice or promotion and dyeth, his Executors are lyable, by the spi­rituall or Ecclesiasticall Law, to the successors Suite for amends to the repairing of such spoyle or decay. And because some used frau­dul [...]ntly to grant away their Goods, so as no­thing shall be left to their Executors, it was enacted temp. Elizabeth, [...] Cap. 10. that such Grauntees of Goods should be lyable to the successors suite, for these dilapidations, as if they were Executors.

As for one other case of this nature, viz. where an Executor wasteth the Goods of his Testator, or an Administrator the Goods of his Intestate, and dyeth. Whether his Exe­cutor be subject to Action for this or not. I [Page 157] adjorne the reader to that place where I shall treate of such wasting, or devastation by Exe­cutors.

Vnto this head, not unfitly may be refer­red, what before is said of Actions against the Executors of the Debtors Heire,Fitzh. Ex. 77. and the Executors of the Ordinary, for the Specialty, binding to payment reacheth not to any of these; but because their Testators should have payed these debts with the Goods or Profits of the Lands of the Debtor, and did not, but retained them to themselves▪ I conceive no difference be­tweene this and the other cases, sup [...]a. there­fore for this as a wrong, are they suable; as I take it. So also by the same reason are the Ex­ecutors of an Administrator chargeable, where hee did neither pay the debts,2. H 4 13. He may by [...]. Co lib. 11. f. 88. 3. H. 6. 35. nor leave the goods to the next Administrator,Co [...]. for arre­ [...]ages of an ac­count before au­ditors, 11. H 4. 64. 91. 92. 9. H. 6, 11. but other­wise disposed of them. Yet an Executor is not chargeable in an action of Det [...]nue, nor of ac­count (except to the King) for the Testators detaining, and not paying or answering things received, or under his charge.

And the reason why, after account made be­fore Auditors, and the Bayly, or receiver be found in Arrerages and dye, that in this Case his Executor is chargeable, is, because the au­ditors are made Judges by the Statute, West. 2. cap. 11. and so this Arrerage which they have judged,13. Ed. 1 is a debt by Record.

But if the case be put on the other side, viz. [Page 158] that the Bayly, or Receiver, have found in sur­plussage upon his Account, viz. that he hath laid out more in his Lords or Masters busi­nesse, then his receipts amounted unto, and then his Lord or Master dyeth,C [...]. lib. 9. f. 87. a. now shall not he have any action against the Executors, for the surplussage, because it is out of the purview of the said Statute.


Chap. XII. Directing the Order and Method to be used by Exe­cutors in payment of the Testators debts.
  • 1 OF disbursements about the testators funerall, 1
  • 2 About proving of his Will, 2
  • 3 Payment of the testators debts upon record, 3
  • 4 And first debts to the King or Crowne, 4
  • 5 Debts by judgment or recovery in some court of record, 8
  • 6 Debts by Recognizance and Statutes, 11
  • 7 Debts by specialty, by Bonds, Bills, &c. 14
  • 8 Debts by Rent reserved upon Leases of grounds, farmed by the testator, 18
  • 9 Duties by the testators assumpsit or promise, or upon simple contract made by him, 29
Chap. XIII. Of Devastation or Wasting.
  • 1 WHat shall be said to be a wasting or devasting, and how many wayes that may be done, 32
  • 2 Who shall by this Act of devastation be charged to yeeld recompence, and make satisfaction, 36
  • 3 Who shall reape the benefit, or take advantage of this de­vastation. 38
  • 4 How farre the executor thus wasting, shall incurre da­mage, or make his owne goods lyable, 40
  • 5 By what way or meanes shall reliefe be had upon this point of wasting. 41
Chap. XIV. Of an Executor of his owne wrong.
  • [Page]1 WHat acts or intermedlings of such an one not be­ing executor nor administrator by right, shall make him to become an executor by wrong, 49
  • 2 In what manner, and by what name such shall be sued, especially when another then is executor or administra­tor, or himselfe after such act becomes administrator, 55
  • 3 How farre an executor of his owne wrong becomes lya­ble and obnoxious to suits, 57
  • 4 What acts done to him, or by him, who is executor of his owne wrong, shall stand firme and good, as done by or to the right executor, 58
  • 5 Of addition and alteration by Statute: 43. Eliz. c. 8. 60
Chap. XV. Of Pleas by Executors, and which be best, which most prejudiciall to them.
  • 1 TO plead hee was never executor, nor ever admini­stred as Executor. 62. 67
  • 2 To plead fully administred, 64
Chap. XVI.
  • OF judgement against executors owne goods, though no plea of the defendant, nor devastation doe so occasion, and of the severall manners of judgements in severall cases. 73.
Chap. XVII. Of married women and Infants Executors. 76.
  • 1 WHether they may make Wills with or without their husbands assent, and how, where, and in what cases, 77
  • [Page] 2 Whether they may be made executors without their hus­bands assent, or how far their husbands may hinder it, 84
  • 3 Touching administration, viz. what acts in execution of the executorship they may doe without their husbands, or their husbands without them, 89
  • 4 Touching Infants, and their making or being made exe­cutors, wherein the severall ages of females, 92
  • The severall ages of males. 93
Chap. XVIII. Of Legacies.
  • 1 WHether any Legacie in certaine, and lying in Prender, may be taken or had without the exe­cutors assent by the Legatee, or him to whom it is be­queathed. 106
  • 2 When an executor can, or safely may pay, deliver, or as­sent to a legacie. 108
  • 3 Whether one executor alone may doe it, where there be many; or what if the executor be an infant, or a married woman, ibid.
  • 4 What shall amount to an assent of the executor, and what to a disassent, or a disability of assent, 109
  • How a lease or chattell reall may be given to one for a time, with remainder to another, how not. 113
  • 6 Where an assent to the first, or one part of the bequest, shall amount to an assent for the residue, 121
  • 7 Of the manner of Assents, and therein of Assents condi­tionall, 123
  • 8 What manner of interest the Legatee in the remainder of a Lease, after the death of another, hath during the life of that other, and whether he may dispose of it during that time, and how? 125
  • 9 Whether this remainder can be defeated by any act of the Devis [...] for life, or by the death of him in Remainder first? 126
  • [Page] 10 By what acts or accidents a legacie may be forfeited, lost, or revoked, as by revocation, death of the Legatee before, &c. 127
  • 11 Whether the executors assent shall have relation to the testators death, and shall make good a grant before made by the Legatee? 135
Chap. XIX.
  • DIvers cases of bequests considered, and expounded. 139
Chap. XX.
  • OF the executor of an executor. 146
Chap. XXI.
  • TOuching Administrators. 148
Chap. XXII.
  • COnsiderations in conscience touching payments of debts, Legacies, and the preferring or respect of persons▪ 149

Chap. XII.
Of the Order and method to be used by Executors in paiment of Debts, and Legacies, so as to escape a devastation or charging of their owne goods.

WE have gone through and dispatched the two first proposed parts, viz. 1. Touching the being of Executors, and the manner of their being. 2. Their having, and the manner of their having. We come now to the third part, viz. their doing or disposing of the testators estate.

Now this consists principally in the issuing of money, though partly also in delivering or assent­ing to the execution of Legacies, not being mony, but other goods or chattels bequeathed.

Money is to be issued by executors, foure wayes ordinarily.

About the funerall of the testator.

About proving his Will.

In paying of debts.

In paying and satisfying of legacies pecuniary.

As for the first, burials be as of necessity for two respects, viz. 1. Of charity to the dead, that hee may be Christianly and seemely interred. 2. To prevent and avoide annoyance to the living, who by the very view of dead carkases, would both be affrighted, and within a few dayes distasted at the nose. We know that under the Law, the touching [Page 2] of a dead carkase made a man uncleane and to need purifying: nor can we easily forget what the sisters of Lazarus said to our Saviour touching their brother, when hee had beene dead two or three dayes: viz. that the taking of him then out of his grave must needs bring a noysome savour. Hereabout therefore some expence is necessary, and that not only for fees to be paid, which in Lon­don amounts to a considerable summe, specially for such as are to be buried within the Church, but also otherwise, viz. for the Pall or Hearse-cloath, the ringing, &c. As for feasting, and banqueting, it seemes not to me congruent to the sadnesse and dolefulnesse of the action in hand. But howsoever that be yet where the testator leaves not sufficient goods to pay his debts, festivall expence is to bee forborn, except the Executor will out of kindnesse beare it with his own purse; for dead debtors must not feast to make their living creditors fast. I mēti­oned a cōsiderable amount of funeral fees payable in London, and surely (to let my thoughts fall back upon it a little) it is worth consideration, whether in that kinde, and especially for those who dying there, are yet carried into their countries to be bu­ried, the exaction be not either unjust altogether, or too onerously excessive, so also for much ring­ing contrary to the Canon made at the Convocati­on in the first yeare of King Iames.

The next thing mentioned to justifie and occa­sion expence, is the proving of the Will: But this way a greater disbursement (except for riding charges, or by reason of opposition by a caveat put [Page 3] in or the like) will not stand allowable then is pre­scribed by the Statute made in the time of Hen. 8. whereby the fees of Ordinaries,21. Hen. 8. cap. 5. and their Scribes, Registers, and Officers be limited. And it is strange that these bounds have beene so much and so fre­quently broken and transgressed, the rather, for that long before in the time of King Edward the third,1 [...]. Ed. 3. cap. 4. by an Act of Parliament, it is provided that the Kings Justices should as well at the Kings suit, as at the parties grieved, enquire after such oppres­sions, or extortions, for so they be called; yea S. Germ. Do. & S [...]u. li. [...]. cap. 10. who was no stranger to the civill and canon law, as appeares by his book, saith that the Ordi­nary ought to take nothing for the probate, if the goods suffice not for funerall and debts; but hee meanes only that conscience is against it.

Now we come to the third occasion of disburs­ment, viz. paiment of debts, which is the maine part of our businesse. We have before seene what debts lye upon executors, having assets to pay them; we are now to see in what order they must pay them, as well Ʋt sint fidi dispensatores▪ as for their owne indempnity, ne quid res sua capiat detri­menti. To put our selves into the better order or method of handling these things, we will sort out debts into their severall kinds thus.

They are of these three sorts, viz. either,

Debts of or upon record.

Or debts by specialty.

Or debts without specialty.

The debts upon record may be againe divided into foure sorts or kindes, viz.

[Page 4] Debts to the King or the Crowne.

Debts by judgement or recovery in some court of record.

Debts by recognizance.

Debts by statute staple, or statute merchant.

Amidst these, the debts to the Crowne are to have the first place or precedence, so as if there be not come to the executor goods of greater valew then will suffice for the satisfaction of these, he is not to pay any debt to a subject, and if he be sued for any such,M. 33. & 34. E­liz. the Lady Walsingh [...]ms case in com. ba. & Tr. 39. Eliz. he may pleade in Barre of this suit that his testator died thus much indebted to the King, shewing how, &c. and that he hath not goods surmounting the value of that debt. Or if the subjects pursuit be not so by way of action, as that the executor hath day in Court to pleade, but be by way of suing execution, as upon statute marchant, or staple, then is the executor put to his audita querela wherein he must set forth this matter. And there is great reason why the Kings debts should thus be preferred before any subjects, viz. for that the treasure Royall is not only for susten­tation▪ & maintaining of the Kings household, but also for publick services, as the warres, &c▪ as ap­peares by the statute, 10. Rich. 2. cap. 1. And there­fore it is as I conceive, that Bracton saith of the treasures or revenues Royall,Lib. 1. Roborant coronam they doe strengthen or uphold the Crowne. And for the like reason as I think, did God inact touch­ing the possessions of the Crown, that if they were given to any other then the Kings owne Chil­dren, they should revert and come back to the [Page 5] Crowne the next Jubilee, which was once in fifty yeares, sed de hoc satis. But this priority of paiment of the Kings debt before the debt of any subject,21. E. 4 21, 22. is to be understood onely of debts by or upon re­cord due to the King,So must it bee pleaded, M. 33. & 34. Eliz. and not of other debts. If any ask how the King should have any debts which shall not be of record, since by the statute 33. of King Hen. 8. cap. 39. it is inacted that all Obligati­ons and specialties taken to the use of the King shall be of the same nature as a statute staple: To this I answer, that there may be summes of money due to the King upon wood sales or sales of Tinne, or other his minerals, for which no specialty is gi­ven; so also of amersements in his Courts Baron, or Courts of his Honours, which be not Courts of record: The like of fines for coppyhold states there. So of the money for which straies within the Kings Mannors or liberties are sold. Also as the law hath lately beene taken and ruled in the Exchequer, even debts by contract due to any sub­ject, are by his outlawry or attainder forfeitable to the Crowne. Yet neither these nor those due to such person outlawed or attainted by bond, bill, or for arrerage of rent upon lease is or can be any debt of record untill office thereupon found; for although the outlawry or attainder be upon re­cord, yet doth it not appeare by any record before office found that any such debt was due to the per­son outlawed or attainted. Thus are not these debts to the Crowne to have priority of payment before the subjects debts, though the Kings debts of record are so to have; so that if a subject to [Page 6] whom the testator was indebted by specialty sue for this debt, the executor must pleade that the te­stator dyed indebted thus much to the King by re­cord,And must plead the re­cord in certain as was held in the case of the Lady Walsing­ham, M. 33. & 34. Eliz. but it sufficeth to say, by a record of the Exchequer as was held Tr. 39. Eliz. in b. reg. more then which he left not goods to satis­fie; if the truth of the case so be, for if there be suf­ficient to satisfie both, then the subject creditor is not to stay for his debt till the Kings debt be levi­ed. And if the subject creditor sue execution up­on a statute, so that the executor hath no day in Court to pleade this debt to the King, then is the executor put to an audita querela, wherein he must set forth that matter, and so provide for his owne indempnity. But what shall we say of arrerages of rent due to the King? surely where it is a feefarme, rent, or other rent of inheritance, I see not how it can come under the title of debt, since for it no action of debt is maintainable so long as the state continueth in him to whom it grew due, and I find that the Lo. Dyar, M. 14. Eliz. said that the King could but onely distraine for his rents, and not o­therwise levie them of lands or goods; and that the King by his Prerogative may distraine in any other lands of his tenant our bookes tell us, but no more. Yet I know it hath beene otherwise done of late in the Exchequer, which if it have beene the ancient and frequent use of the Exchequer, it will stand as law though unknowne to the Lo. Dyar. Now rent upon a lease for yeares differeth from the other, since for the arrerages thereof an action of debt lyeth, but how can either of these be debts of re­cord, when the not payment may be either in the Court of Exchequer, or to the receiver generall or [Page 7] particular? & how then can there be any certain re­cord of the not payment, so as to make any certain debt upon record? Wee know statutes have beene made to make the lands of receivers subject to sale for satisfaction to the Crown; and besides that some ancient Patents direct the payment of Fee-farmes into the hands of Sheriffes, the statute of Westm. 1. cap. 19. provides remedy for the King against Sheriffes not answering the debts of the Crown by them received: so as the Kings Farmer or debtor may have paid his rent or other debt, and the Crowne have not yet received it. Of Fines and amercements in the Kings Courts of Record, there is no doubt but they are debts of record.

Come we now to the debts of subjects, and first those of record; touching which, I shall not be able to hold so good a method, and so well to handle things by parts as I would, for that the parts so stand in competition one with another for prece­dencie, as that they must of necessity thereabout conflict and interplead one with the other, and contest one against the other: yet for the Readers better ease and ability to finde out that which may concerne him in his particular case, I will in the best sort I can single out these things into severall parts, and place them in severall roomes or stati­ons. First, considering how it shall stand between one judgement and another had either against the executor or testator. Secondly, how betweene judgements and statutes, or recognizances. Third­ly, how betweene recognizances and statutes. Fourthly, how betweene one recognizance and [Page 8] another. Fifthly, how betweene one statute and another, adding to each some observations in­cident.

Now next to the debts of the Crown are judge­ments or debts recovered against the testator, to have priority or precedencie in payment, as being of an higher nature, or more dignity than any o­ther, for that statutes and recognizances, though they make debts upon record, yet are they begot­ten but by voluntary consent of parties, whereas in every judgement there hath beene a course and work of Justice against the will of the defendant, as is presumed; and this in a court of justice, and the records of such judgements are entred in pub­like rolls, not kept or carried in pockets or boxes as statutes,Co. lib. 5. f. 28. and untill inrolment recognizances are. Therefore executors must take heed that judge­ments against their testators before debts any other way,So Wray and Gaudy inter Bond & Bales 28. Eliz. vel cir­citer. if they have not sufficient for both, be first sa­tisfied: lest they draw the burthen of this debt up­on their owne backs.Yea though a writ of Error by the execu­tor to reverse the judgement yet suffering a statute to bee executed, must p [...]y of his own. Now their way to help them­selves being sued, or pursued for other debts, is the same before delivered touching debts upon re­cord to the Crowne, viz. by plea, where they may plead, as in S [...]ire facias, upon a recognizance or suit upon band, and by A [...]dita querela, where they can­not plead,Read & Bear-blocks c [...]se. P. 43. Eliz. Ba. [...]e. as when execution is sued upon a sta­tute. And if they had no warning in the Scire fa­cias, So held in Reades case su­p [...]a. vide 12. H. 7. K [...]lw 24▪ 25. to like purpose. but upon nihil returned the judgement pas­sed, there also the executor may bee releeved by audita querela, because there was no default in him that hee did not plead or set forth the judgement [Page 9] upon the suit in the Scire facias. Nor will it bee any plea for the creditor by statute to say that his statute was acknowledged before the judgement,Co. lib. 4. f. 59. and so is more ancient,So Pe [...]iam in com. ba. inter Charnock and Worsley. 34. E­l [...]z. vel circiter. for a latter or more puisne judgement is to bee preferred before a statute in time precedent. But if this judgement be satisfied, and it only kept on foot to wrong other creditors,Co. lib. 5. f. 28. or if there be any defeasance of the judgement yet in force,Co. li. 8. f. 132. then the judgement wil not availe to keep off other creditors from their debts: And thus much touching debts by judgement▪ viz. how they stand in priority before other debts by statute or recognizance. Now to see how they stand among themselves, let this be observed, viz. that between one judgement and another had against the testa­tor,So held in 15. & 16. Eliz. precedencie or priority of time is not materi­all,So in the Scire fac. by bond a­gainst Bales it was held. but he which first sueth execution must be pre­ferred, and before any execution sued, it is at the election of the executor to pay whom he will first; yea, if each bring a Scire facias upon his judgement, the executor may yet confesse the acti­on, of which he will first, notwithstanding the Sci­re facias was brought by the one before the other. In this Scire facias the defendant may plead gene­rally that he hath fully administred before the Sci­re facias brought without shewing that he did ad­minister in payment of debts of as high nature; yet that must be proved upon the evidence, else the triall will fall out against the executor. Thus have I delivered the most materiall things in my appre­hension touching debts by judgement; yet there­about I will adde for the better information of the [Page 10] Reader, not studied in the Law, these few things. First, that what hath been said is only to be under­stood of judgements against the testator, and not of any against the executor himselfe, for of those being but debts by specialty at the time of the te­stators death we shall speak after. Secondly, what is said of the testator in case of an executor imme­diate, is likewise to be understood of the testators testator in case of the executor of an executor, for where A. makes B. executor, and B. makes C. exe­cutor, there the goods which came from, or were left by A. be not in the hands of C. lyable to judge­ments had against B. Nor on the otherside, are the goods of B. in the hands of C. subject to the judge­ments had against A. And the like is to be under­stood of statutes, recognizances and bonds, as el [...]e­where is somewhat touched.9. El. 4. 14. 15. Thirdly, Recoveries or judgements by meere confession, without de­fence, are yet of the same nature, and to have the same respect as other recoveries upon triall or o­therwise; for although they may seeme to be but of the nature of recognizances which be debita re­cognita, Quae. of arrera­ges of account before auditors without suit, for the execu­tors are char­ged by judge­ment of the Auditors, by [...] W. [...]. judg. of record. 10. H. 6. 24. 25. Br­de [...]. 183. yet doe they differ from them, in that here a debt is demanded by a declaration which is in­tended true, & that therefore the defendant cannot deny it, but in case of a recognizance it is not so, for there usually no action is entred, nor debt de­manded. Fourthly, the foreshewed respect to debts by judgement, is not to be inclosed within West­minster Hall-and be restrained to the foure Courts there, but may and must extend it selfe to judge­ments in other Courts of Record, viz. in Cities and [Page 11] Townes Corporate, having power by Charter, or prescriptiō to hold plea of debt above forty shil­lings, as in London, Oxford, &c. For although there execution cannot bee had of any other goods than such as be within the jurisdiction of that Court, yet if the Record be removed into the Chancery by Certiorari, and thence by Mitti­mus into one of the Benches, so execution may be had upon any goods in any County of Eng­land. Fifthly, in case where the testator was bound in a recognizance and a Sci. fac. brought against him, and thereupon judgement given; Although this judgement be not quod recuperet; Quae. of judge­ment in a writ of Annuity for arrerages after. as in case of actions of debt, but quod habent exe­ti [...]nem, yet since execution is the life, fruit, and effect of all judgements▪ this may now well stand for a debt by judgement, as I take it.

Of Recognizances and Statutes.

NExt unto debts by judgement, are those by statute or recognizance to bee regarded by the executor. And because I find no diffe­rence of priority or precedencie betweene these two, I therefore ranke them together; yet one reason of preferment given to judgments before statutes in Harisons case, viz. that the one remains a record upon the roll in the Kings court, where­as the other being carried in the pocket of the counisee is more private. This, I say, should give priority also to recognizances before statutes, as also another reason, for that statutes are not pro­perly [Page 12] records, but obligations recorded; yet do I not find that this makes a difference for priority of payment. And indeed the statute is the more expedite remedie, since thereupon execution may be taken out without any Scire facias, or o­ther suit, which cannot be in the case of a recog­nisance; for there if a yeare be past after the ac­knowledgement, no execution can be sued out against the partie himselfe acknowledging it, without a Scire facias first sued out against him: And if he be dead, then though the yeare be not past, yet must a Scire facias be sued, and thereup­on the executor defendant may plead some plea to hold off the execution for a time. But this not­withstanding, the executor may satisfie the recog­nizance before the statute,Before S [...]i. fac. not after vo­luntarily, but if levied by writ of Extend. sa. good. at least if he doe it be­fore execution sued thereupon; for they stan­ding in equall degree, it is at his election to give precedencie and preferment to whether he will. Neither is it materiall which of them were first or more ancient; nor between one statute & ano­ther doth the time or antiquity give any advan­tage as touching the goods, though as touching the lands of the conusor it doth; but as for his goods in the hands of his executor, whosoever first getteth hold of them by his execution shall have the preferment. And before suing of exe­cution, the executor may give precedence or pre­ferment to whom he will. But now some may ob­ject that there is no course nor writ of execution for any such counisee against the executor, and if so, then statutes merchant, and of the staple, [Page 13] are in vaine spoken of, and it is true that Master Brook after Chiefe Justice of the Common Pleas in his new Cases professeth,B [...]. N▪ [...]. [...] ▪ & Stat. Mar. 43 that he knew not any remedy for the creditor out of the goods of the conusor after his death. But if this should be so, the Law were very defective, since the sub­stance of many, especially of marchants, for and among whom the statute marchant was provi­ded, consisteth usually more in goods then lands; besides the plea of Harrison, administrator of the goods of Sidney in barre of Greenes action of debt upon an obligation,Co. l. 5. f 28. b. H. 40. Eliz. [...]ot, 119. viz. that the inte­state stood bound in a statute staple to I. S. and Greenes reply thereunto, that there were Inden­tures of defeasance, no covenant whereof was broken, and the resolution of the Judges that the said matter in the replication was good to avoid the defendants plea. All this, I say, and the re­solution of the Judges of the Common Pleas in that case,P. 32. Eliz. [...]ot. 235. in cont. ba. and in the case betweene Pemberton and Barram, as also in the Kings Bench by Pop­ham and the rest of the Judges, that executors must satisfie judgements before statutes, and sta­tutes before obligations, had beene idle and sa­vouring of grosse ignorance, if no execution at all could be had against the executors of him bound in a statute and then should Greene have demur­red upon the plea of Harrison and needed not to have pleaded that other matter,See Co. lib. 5. 91. execution against an Ex­ec. upon a sta­tute. Semaines case. but none of the Judges or Serjeants ever conceited any such matter: that which there was replyed, viz. that the statute was not forfeited, is here to bee re­membred, [Page 14] Co. lib. 5. f. 28. as good matter both against statutes and recognizances,So if satisfied, though not dis­charged. and that whether the recog­nizance have a defeasance or a condition not broken, so that the recognizance is not forfeited. In none of these cases is the executor hindred frō payment of debts by specialty, nor can he be justified or excused if by colourt hereof he refuse so to do; and indeed else might creditors be ex­ceedingly defrauded by recognizances for the peace and of good behaviour, &c. and so by statutes for performing covenants touching the enjoying of lands, if these should keepe off the payment of debts, and yet themselves perhaps never bee forfeited, nor the summes become payable.

Of Debts by specialty.

NOw come wee to debts due by specialty, viz. bond or bill (of which nature the greatest number of debts are) let us then see what course the executor must or may hold for satis­faction of these, admitting that the testator stood not indebted by any record, or that no forfeiture is of any such debt, or that there be goods in the executors hands above the amount of such debts by record. This I say dato, then according to the rule proximus quisque sibi, the executor may first satisfie himselfe of such debts, as the te­stator by specialty owed him: for such debts are not released by the creditors taking upon him to be executor to the debtor; though on the [Page 15] other side if the creditor make his debtor execu­tor, this is a release of the debt. Although it be given out or commonly spoken in the generall, that an executor may first pay himselfe, yet is it to be understood with this caution or condition, viz. that the debt to him be of equall height or dignity with the debts to others according to the rule inaequali jure melior est conditio possiden­tis, for if his testator were indebted to other men by any statute, judgement, or recognizance, and to him whom he maketh executor only by bond, or other specialty, then may he not first pay himselfe, that is, by paying of himselfe leave them unpaid whose debts are of a higher na­ture; but if there bee sufficient for satisfaction both to them and himselfe, then is it not mate­riall which be first paid. Now touching the debts to other men the executor hath power to give preferment in paiment to whom he will; so that if the testator left but an hundred pounds, being indebted to A an hundred pounds, and to B an hundred pounds by severall obligations, the ex­ecutor hath power to pay B. 28. H. 8. Dy. 32. Doct. & St. ca. 10. p. 78. his whole debt, and to leave A altogether unpaid any part of his debt, so as he have not commensed any suit be­fore paiment to B. But yet herein this difference is to be taken and observed by executors, that if the time of paiment upon the bond of B were not come at the time of the testators death, then may not the executors before the money to B be­come payable pay him and leave A unpaid whose money was presently due. Yet if A for­beare [Page 16] to demand or sue for his debt till the debt of B become also payable, then is it at the will of the executor to pay whether of them he will, so as the other may lose his whole debt if the goods will not suffice to pay both. What if A have only by word demanded his debt, and not by suit before the debt to B become payable, whether doth that hinder that the executor may not now when the money to B is also pay­able, pay him and leave A unpaid. And hereun­to S. Germ. answereth negatively, making this verball demand to be idle and of no value: yea, he addeth that if A have commenced suit be­fore the debt to B become payable,Do. & St. p. 78. yet if the ex­ecutor can delay the suit till the debt of B be­come payable, so that A can get no judgement before that time, and before B hath commen­ced suit upon his band,Quae. If then hee may not pleade this judgement post ult. contin. a­gainst A. as he may pleade it against other suits after cō ­menced. Co. li. intr. 148. 269. 149. a. then may the executor confesse his action, and so pay his debt leaving A unpaid. But of this I make some doubt, for that I finde in 9 of King Ed. the 4. some admit­tance, that if A having a Tallie, patent, or other warrant from the King for receipt of money, of or from a customer or receiver where others had like warrants before him, but A maketh the first demand, now must the officer first pay him or else himselfe shall become debtor to him if he first pay others whose demands were after made, though they had warrants before A. Likewise there is as to me it seemes, some admittance in the same book, that the very demand made by a creditor of his debt from an executor, who hath [Page 17] then assets in his hands doth intitle the creditor, to recover damages against the Executor out of his owne goods; which if it so bee, then doth even that verb [...]ll demand lay some tye or obliga­tion upon the executor for payment. But here­about, I lay downe nothing peremptorily. We partly may discerne by the premises how the executor is to guide himselfe in case, where there be divers debts by specialty all due, and pay­able at the testators death: before any sute com­mensed for any of them, for in that case cleere­ly the first verball demand gives not any prece­dence, all being due, and so standing in equall degree; And this is implyed in many Bookes making the commencement of the sute onely that which intitles to priority of payment,4 [...]. E. 3. Fitzh. Ex. 68. 6. & 7. El. dy. 232. vide 21. H. 7. Kelw. 74. or at least restraines the election of the executor. Yet admit that one creditor first doth beginne suit, if others also after sue before hee bee payd, or have judgement; now cannot the executor pay him first who first commensed sute, but hee who first hath judgement must first be satisfyed.5. Hen. 7. 27. So Walmsley inst. P. 39. Eliz. in Error. al. S [...]riants Inne. And the executor may herein yeeld help to one before the other, viz. by essoignes emplances or dilatory pleas to the one, and by quick confes­sion of the others action;Co. lib. Intr. 269. such a re­covery by con­fession is plea­ded against a­nother▪ and ad­mitted good & fo. 148. 149. Do. & S. p. 78. b. for he is not bound a­gainst his will to stand out in sute, and expend costs where the debt is cleere, nor is this covi [...]e but lawfull discretion, which conscience will also approve some good consideration inducing. Nay after sute commensed, yet untill the executor have notice thereof, he may pay any other credi­tor, [Page 18] and then plead that he hath fully administred before notice. Nor is the Sherifes returne of summons or distres sufficient cause of notice, for the summons might perhaps bee upon his land: but if it were to his person, it is notice sufficient, and then to save himselfe, hee must say that he was not summoned till such a day before which hee had fully administred; yet doubtlesse the executor may be arrested at the creditors sute in some sort, which yet shall bee no sufficient notice of this debt. As for the purpose, if hee bee sued by Latitat out of the Kings bench, this supposing a trespas gives no notice of a debt, so also of a Subpaena out of the Exchequer; but the originall returnable in the common plees expresseth the debt, and so in some sort doe the proces there­upon. And therefore it seemes by some bookes,So also was it [...]ayd Tr. 29. Eliz. that if it bee laid in the same County, where the executor dwels, he must take notice of it at his owne perill. But this I take not to bee Law, nor is there any great opinion that way: and although to make it more cleere, the executor in King Henry the fourth his time, estranging himselfe from notice of the sute before payment to others, did alledge that the action was layed in a forren Country; that is no great proofe that if his abode had beene in the County, where the action was brought, hee must have taken notice; but thus it was cleerer, and a little surplusage hurts not. Now betweene a debt by obligation, and a debt for rent or dammages upon a Covenant broken, I conceave no difference nor any priority or pre­cedency, [Page 19] but it is as the executors discretion to pay first which he will, as if all were by bond. So also of rents behinde and unpaid as I conceave, but touching them principally intending rents upon leases for yeeres divers considerations are to be had, and some distinctions to be made, as first, betweene rent behind at the time of the testators death, of which that before said is to bee understood, and that which groweth behind after next betweene sute for the rent by action of debt, and by distres and avoury. As to the first difference, if the rent grew due since the testa­tors death, then is it not accounted in Law the testators debt, for onely so much is in Law ac­counted assets to the executor as the proffits of the lease amounted to over and above the rent, so as for that rent so behind the executor himselfe stands debtor, as hath beene resolved, and there­fore hee is suable in the debet, and detinet, where­as for rent behinde in the testators life, and all other the debts of his testator hee must bee sued in the detinet onely. Hence it must follow as it seemes, that an executor sued for debt upon bond, or bill, cannot (except in some speciall cases) pleade a payment or recovery of rent growen due since his testators death; though of rent be­hind at the time of his death it bee otherwise. And yet heere againe another difference or di­stinction is to bee taken, viz. where the prof­fits of the lease exceede the rent, and where the rent is greater then the yeerely value of the prof­fits, for even there as else where is shewed, the [Page 20] executor if hee have assets, is tyed to the holding of the lease, and payment of the rent, and con­sequently doth so much of that rent as exceedes the yeerely profit, stand in equall degree, the testators debt with other debts by specialty; and yet againe to reconsider this point, what if the debts of the testator by specialtie payable presently at his death, or before the time that any rent can grow due upon this Lease, shall a­mount to the full value of the testators goods; may not then the Executor though hee doe not pay those debts before the rent day (for that would make the case cleere) waive the terme; for if he may, then happilie i [...] he doe not so, but shall by payment of any of this rent want goods to pay any part of the debts by specialtie, it may lie upon himselfe, and his owne goods, as hap­pening by his owne default. But on the one side it may bee said that hee could not waive it so long as hee had assets, because thereby hee stood equallie liable to pay that debt being once due, as the other debts by specialty. On the other side it may be said that though the debts for rent, and upon bond, shall bee admitted to bee in na­ture equall, yet the case being put of rent not due at the time of the testators death, it was not then a debt nor duty, whereas a Bond makes a present debt, and duty, though not presently payable, the day of payment being not yet come, so as this latter is discharged by a release of debts, or duties, and so is not the former. So to leave that point unresolved, let us next see whether in [Page 21] some case, though the rent exceede not the yeerely value of the Land, yet even that payable after the death of the testator may not stand in most part, if not wholie, upon the testators score as his debt, as well as if it had beene pay­able before his death. Posito then that the whole or halfe yeeres rent is payable at the annuncia­tion of our Lady, and that the testator dieth two or three daies or some like short time before that feast, now certainlie should the Law bee unreasonable if it should lay this debt upon the executors shoulders in respect of those few winter daies proffits which he tooke. But surely since the taking of the proffits in­duceth the Law to lay the rent upon the Exe­cutor as his owne debt; therefore as where the Executor had the proffits for the whole yeere or halfe yeere, except some few daies incurred in the testators life time: those few daies will bee unregarded according to the rule, De mini­mis non curat lex, & the whole rent shall lie upon the Executor as his owne debt. So on the con­trary part, where the whole yeere or halfe yeers proffit except some few daies incurred after the testators death, the rent becomming payable so instantlie after the testators death must in reason lie wholy upon the testators e­state, as to me it seemes. What if to this I adde that the testators cattell wherewith the ground was stocked doe depasture, and devoure the proffits all the time after the testators death. till the day of payment of the rents? Nay if [Page 22] the rent were payable at Mich. and the An [...]unc. and the testator dieth a few daies after Mich. the rent being of or neere the value of the Land, it will then bee ha [...]d that the Executor shall for this winter proffit pay the rent out of his owne purse, especiallie if the whole yeeres rent bee payable at that one day as in some cases it is; or if the whole yeeres proffits were taken in the summer as in case of a lease of tithes, it is so also of medow grounds usually drowned in the winter. So if the lease bee then to end not having a summer halfe yeere to succeede, and make amends for the winter: or if the winter halfe yeere bee the latter halfe, the lease beginning at Lady day, so that there is but a summer for each winter following, and not any for the winter passed. Of like considera­tion with these is the case of a lease of woods for a rent, which being fellable but once in eight or nyne yeeres; now if the lessee, having made the last sale and felling before his death, the Law should cast the rent upon the Execu­tors owne estate for the time future, it should lay losse upon him, which is against reason, and contrary to the nature, and disposition of the Law even in this particular. As appeares by this, that shee enables an Executor to pay him­selfe before any debt of equall nature, so as shee more tenders an Executors indempnity then any other Creditors; therefore I thinke that with, and upon the differences above shewed, even rent growen due after the testators [Page 23] death may in some cases bee the testators debt payable equally with debts by bond. But here I conceive that if the executor were in such case of destitution of assets as might ju­stifie his waiving of a lease over-rented, hee then may waive these termes residue, because for the future the profits will come short of an­swering the rent, though at the first, and so in the totall, the profits did exceed the rent. And if for want of waiving, where he might, this rent fall upon him, the paiment thereof would be no excuse against another creditor, nor as to him be a good administration, for Ignorantia juris non excusat. This is pertinent to our present consideration, which debt may with safety be paid, leaving another unpaid; and the hazard of executors, by ignorance of the Law hath been a principall motive to my writing these Discourses in English. Hitherto we have only considered, as I think, of rents, as they be reco­verable by action of debt. Now let us see if there may not be somewhat different conside­rations touching distraining for rent, and so comming to recover it by avowrie. Put wee then the case that an executor hath fully ad­ministred in payment of debts by bond, and after the lessor or revertioner commeth and di­straineth for arrerages of rent due in the testa­tors life; can the executor in bar of the avow­rie plead fully administred, as hee might have done if an action of debt had been brought for these arrerages? doubtlesse I think no, nothing [Page 24] shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease, except the land come to the King, upon whose possession no distresse can be taken: I think therefore that the execu­tor who paid out of his own purse to the value of this lease (for to I intend the case, and else could he not have fully administred, as in the case was put) he should, I say, have abated in the price and valuation of the lease, as well the arrerages of rent, as the rent futurely pay­able, both being equally leviable upon the land, and if he so have done, he is no loser by payment of this arrerage: but if trusting to the power of an executor, and to the plea of fully administred hee did not so, but disbursed in respect of the lease to the full value without such abatement, he must beare the losse of his owne ignorance. He might also another way have helped himselfe, viz. by payment of that arrerage, leaving other debts by specialty un­paid. And what if suits were presently com­mensed upon the testators death before hee could make payment of the rent behind, whe­ther might the executor then plead this debt for rent, as hee might a debt by judgement or statute, and surely me thinkes it probable that he might, because it is a debt from which hee cannot be freed by payment of the other debts sued for by specialtie. If the revertioner would▪ also commence suit before judgement had for the creditor by specialty, then might the exe­cutor [Page 25] helpe himselfe by confessing his action first; but this perhaps the revertioner would not conceive safe for him, since that way the o­thers might get judgement before him, and so he might lose both his suit and his debt, wher­as holding himselfe to the course of distres, the lease continuing, he hath land at the stake, for his debt. What if he distraine and avow? may not now [...] executor pay him, or at least con­fesse his [...]tion or avowry, so as he first having judgement, may first be satisfied. Surely after suite commenced, I see not how the creditors by bond can so be prevented, at least without judgement had for the rent; yea, though such a judgement be had, yet because the judgment in that case is not that hee shall recover the summe due for rent, but only that he shal have a returne to the pound of the cattell distrained for the rent, it is questionable whether the pai­ment thereupon of the rent shall prevent the judgements after had in the suits upon bonds. But I thinke it shall, because although it bee not an expresse recovery of the rent, yet is it such a judgement compulsary for the same, as makes the payment inevitable and of necessi­tie. And where before we have made the que­stion only between the said rent-debt, and the debt by obligation: let us now put the case be­tween the rent-debt and the debt by statute or judgement. If then the lessor after death of the lessee distraine for the rent behind part of the testators cattell, and after there comes a [Page 26] writ of execution upon a judgement or statute of the testators; whether shall these beasts in the pound for rent be delivered in executiō or not, admitting that without them there be not goods sufficient for satisfaction of the judge­ment or statute. And surely I thinke they can­not be delivered in execution:See [...]3. R. 2. Bro. Pledges 31. At­tainder of the party distraind shall not take away the di­stres. First, for that they are in the custody of the law, as in String-fellowes case, though there the Kings preroga-time overtopped that point; yea, so I thinke, though they be replevied, for that they are to be returned to the pound,Vide Dye [...]. if judgement passe for the avowant, to which purpose securitie is given, so as they are but in t [...]e case of a priso­ner bailed, who still is in some sort in custodie. Secondly, for that this rent incident to, and descendible with the reversion, breeds a debt of a reall nature, and so of more dignity and worth than debts personall. Thirdly, for that the land let (as in a sort debtor) stands charge­able with this distres from the very time of making the lease, as either by a contract real of quid pro quo, or rather by an operation of law or legall constitution, or ancient custome of the Realme, without any contract of persons. Last­ly, for that the lessor doth not distraine the cattell therefore, or in that respect for that they are or were the goods of the testator, but for that hee found them levant and couchant upon the land, which must afford his rent, or a distr [...]sse for it if behinde, so as if they had beene any under tenants or strangers Cattell, [Page 27] they might have beene distrained. Some may perhaps object this reason why these impoun­ded cattell should be delivered in execution, viz. for that where otherwise the creditor by statute or judgement should lose all or part of his debt, yet by this releefe done to him shall not the lessor lose his rent, for that he may at any time after distraine any goods or cattell found upon the ground at any time during the continuance of the lease. But here besides the point of delay and stay for this rent, which to many is the sole meanes of maintaining their households and families; this further is consi­derable, that perhaps the lease may be neere expiring, perhaps so highly racked and ren­ted, even to or above the value, as that the exe­cutor having his testators stock taken from it and him by execution will not stock it any more, and so the land lying fresh, if the lessor shall lose the benefit of his former distres, he shall be perhaps without remedy for his arre­rages of rent. And if the case were of a distres for rent behind after the testators death, I con­ceive though not so strongly, for most of the reasons abovesaid, that the law would be all one as in the other case; for though in this case respect shall not be had to the executors losse upon whose goods the law casts this debt, though not the other, yet here the point of losse must fall either upon the lessor losing his distresse, or upon the other creditor by spe­cialiy or record losing wholly or in part his [Page 28] debt. And in respect of this locall tye upon this land for paiment of the rent whereto even the fealty of the lessee and tenure of the land bindeth him, and it I think no act that the les­see can do by entring into bonds or statutes, or having judgements against him can hinder the lessor or reversioner from taking his remedy upon this leased land for the rent therefore due, but rather any other creditor shall be a loser in his debt. Doubtlesse i [...] in barre to the avowrie for this rent due either before or since the testators death, the executor will plead that the testator was indebted a thousand pounds, by statute, recognizance, or judge­ment, which is more then all his goods amoun­ted unto, it will be no good plea, but may be demurred upon.Vid. Bro. Pledg. 31. What if hee plead so much debt of record to the Crowne? surely I doubt whether this plea will be allowed in any other Court then the Exchequer; yet if these arre­rages of rent shall be levied upon the land, so as either the executor must pay it or lose the cattell distrained by a returne irreplevisable, and then shall not have sufficient to satisfie the debt to the Crown, I see not how he shall well escape, when pursued in the Exchequer to make up this Crowne debt out of his owne purse, which is hard. For this we may pitch up­on as a Maxime and principle, that an executor where no default is in him, shall not be bound to pay more for his testator then his goods a­mount unto. Againe, it is a rule, that where [Page 29] nothing is to be had, viz. justly to be had, the King loseth his right: and our bookes tell us that the Kings Prerogative must not do wrong, Potestas ejus juris est, So Bracton. non injuriae: nam potestas injuriae non est Dei, sed diaboli. On the other side it may be said, that if land leased come to the King by grant, outlawry, or otherwise, the rent reserved cannot be distrained for, and therefore is it not very unreasonable nor in­congruent that the Kings interest for his debt should make the distres of a subject to stand by and give place. This therefore among o­ther of the premises do I leave as a quaere: nor is it altogether unprofitable either for an exe­cutor or creditor to know what wayes and passages, what cases and contingents be doubt­full and hazardous. And if in these unbeaten paths where our bookes and relations have held me forth no light, expresse, or particular, I have erred in mis-resolving, or missing to re­solve,Not resolving. I hope I shall without difficulty obtaine pardon.

Now let us consider of assumptions or pro­mises made by the testator upon good consi­deration, the performance whereof or making recompence and satisfaction for not perform­ing, doth lye upon an executor as before is shewed. These therefore are to come behinde and give place unto all the former, so as an executor this way or for these sued may pleade debts by specialty, rent, &c. amounting to the whole goods. And yet these debts by con­tract [Page 30] or assumption expresse are to be satisfied before legacies be to be had.Co. lib. 9. fo. 88▪ b. Doct. & Stu. lib. 2. cap. 10. & 11. First, because by the common law of the land those are re­coverable, and so are not legacies: next be­cause as our bookes speake, it concernes the soule of the testator to have aes alienum, all du­ties and debts to other men satisfied before the debtors voluntary gifts or bequests. Also these debts by assumption or simple contract, are to be satisfied before the reasonable part of the wife or children, to which by custome in some Counties they are intitled, see 21. Ed. 4. 21. & 2 Ed. 4. 13. & 2. Hen. 6. 16. And note that in such an action upon the case it is not of necessi­ty to lay or set forth in the declaration that the defendant hath assets to pay all debts by speci­alty,Co. l. 9. fo. 90. b. Pinchons case & fo. 94. Banes case. and this also; but if there want, the de­fendant must alledge that in his excuse, for else it shall be presumed that he hath assets. So al­so in an action upon the case grounded upon the executors owne assumption to pay his te­stators debt, and yet as the L. Cooke conceives, and upon good reason as to me it seemes, if the executors so promising had not assets suffi­cient in his hands to pay this debt promi­sed, he pleading non assumpsit may give that in evidence, for then the consideration faileth, as also if there were no such debt due, since the plaintife could not have recovered if he had sued, and so his forbearance to sue was no va­luable consideration.

Chap. XIII.
Of Devastation or Wasting.

THat which S. Paul of dispensers spirituall who are as it were the executors of the last will and testament of our Saviour Christ doth say or enjoyne, viz. that they must be found faithfull; The same is required of these lesse or inferiour dispensers, the executors of mens Wils, and hereof they are to be regard­full, not only in respect of escaping damage to their owne estates, but more especially in re­spect of an oath which divers of our bookes mention to be taken by executors. And in one of the bookes of relations of cases in the twentieth yeare of Hen▪ 7. his time, there is an expression of three things whereto the office of an executor tyeth him. 1. To doe truly, and thereto are they sworn, saith this book. 2. To be diligent, viz. with sedulity to attend the discharge of the trust. 3. To do lawfully; nor well can this latter be without knowledge what is lawfull or required by the law. Now what is formerly said of the right method and order of paiment of debts, discovereth in much part how and by what wayes an execu­tor may waste and mispend his testators goods and consequently incurre a devastation, and so make his owne goods liable, but of that [Page 32] more fully and particularly by it selfe, and herein we will consider of these parts.

1. What shall be said to be a wasting or de­vasting, and how many wayes that may be done.

2. Who shall by this act be charged to yeeld recompence.

3. Who shall take the benefit or advantage of it.

4. How farre or in what measure the ad­vantage shall be taken.

5. What way or by what meanes it shall be had.

As to the first, this wasting is done divers wayes. 1. by the executor his plaine, palpa­ble, and direct giving, selling, spending, or consuming the testators goods after his owne Will leaving debts unpaid. 2▪ By paying what is not to be paid, which yet is to be understood where there are debts payable and unpaid. 3. By the way formerly discoursed of, viz. the not observing the right method and order of payment. 4. By assenting to a legatees having a thing bequeathed, debts being unpaid. 5. By selling goods of the testators at an under value, for be the appraisement what it will, and let him sell for what he will, he must stand charg­ed to the best and utmost value towards the creditors. Yet if upon a judgement against the testator or the executor, the Sheriffe sell some of the testators goods at an undervalue, this is no vastation of the executor, for this [Page 33] difference Hody chiefe Baron makes. But since an executor may happily prevent this act of the Sheriff by paying the due sum upon sale of the testators goods at the best value or otherwise, he is to be blamed to leave it to the cōscience of the Sheriffe or Undersheriffe rather. 6. And lastly this may be done to the executors smart by undue, viz. not legall discharging of any debt or duty pertaining to the testator, & that divers wayes requiring heedfulnesse. As if an executor upon a bond of two hundred pounds forfeited for payment of a hundred pounds accept the principall, or perhaps also some use, costs, or damage, and give a release or ac­quitall of the whole forfeited bond, or of all actions or upon record acknowledge satisfa­ction upon judgement had.13. E. 3. Fitz. 91▪ This is a wasting of so much as the penall summe is more then is received,Ye [...]on the o­ther side, if an execut. by pay­ment of an 110 pounds, get in a f [...]rfeited bond of▪ 200 pounds, it shal be an admini­strat. but of 110. pounds, 27. H▪ 8. 6. p. Fitz. i [...]st. and so far his owne goods stand lia­ble to creditors not satisfied; and so doubtlesse is it if he doe but give up the bond having no judgement upon it, though he neither make release nor acknowledge satisfaction. But his verball agreement to require or sue for no more, or his giving a note, of receipt for so much as he hath received, or delivering of the bond into a friends hands, or into a Court of equity in way of security to the debtor that he shall not be sued for more, is no devastation, since still the rest in law remaines due and sue­able. So this sets no more upon the executors [Page 34] score then he received. But let him take heed of releasing except he be sure there be no o­ther debts demandable. Nor only is there danger in releasing of debts, but of trespasses or other causes of action also. As if one take away goods from the testator or from his executor; If the executor make him a release, this is a devastation, and makes his owne goods lyable to the whole value of the goods released, as appeares by Russels case, where the release of an Infant executor to one who had taken and committed to his use Jewels and goods of the testator being plea­ded, the release was therefore held void in respect of nonage, for that if it should have stood good, it had amounted to a Devastavit, and made the executors owne goods lyable, which his infancy considered had been hard. Another way of discharging, dangerous to executors, is submitting matters of debt or duty, or touching goods taken away to arbitrement. For if by the award of the arbitrators the debtors or wrong doers bee discharged or acquitted without making full recompence, the rest of the value will as to other creditors sit upon the executors skirts, because it was their voluntary act thus to submit it to arbitrators. Thus may executors fall under prejudice, not onely by wilfull wasting or unfaithfull miscarriage, wherein they are not to bee pittied, but through incogitancy and unskilfulnesse al­so. [Page 35] Nay, I may say truly that it is very hard for executors in some cases to walke safely: For besides that to finde out all judgements and recognizances by or against their testators, is of some difficulty more then for statutes, whereof by search in an Office descry may be had; yet with this dif­ference, that statutes marchant, and statutes staple may be and stand effectuall against executors, though not inrolled, albeit against purchasers of the conusors land they be not of force, if neglect be of inrolement within three moneths. But where statutes or re­cognizances lye for performance of cove­nants upon sale or lease of lands, mariage, agreements or otherwise; how hard is it for executors to know whether any covenant be broken or not; how hard to be sure they finde out all bonds, bils, covenants, and ar­ticles in writing made and kept by others, whereby any money is due and payable be­fore debts by contract or legacies: as also all promises or debts by contract payable before legacies: For the law hath prescri­bed no time for their claime and demaund, and whether some such thing or meane of publication were not fit to be enacted, let the judicious consider. To attaine to this knowledge of the testators debts, I remem­ber that it is by the Lord Brooke reported, [Page 36] that in King Henry the 8th his time, Sir Edmund Knightley being executor to Sir William Spen­cer, made Proclamation in certaine Market Townes that the creditors should come by a certaine day and claime and prove their debts, but hee for this was committed to the Fleet and fined. For that none may make proclamation saith the book, without warrant or authority from the King, except Majors and such like Governours of Townes, who by priviledge or custome may so doe. But the dangers are only where there is not sufficient of the testators goods and cha­tels to satisfie both debts and legacies. For where there is so, the executor is not in any such hazard as aforesaid. This descry of dan­ger may breed caution, and Qui timent cavent & vitant.

As to the second wee shall have in con­sideration two sorts of persons, videli [...]et, 1. His executors, there being many times divers executors, and the waste or deva­station done but by one. Next his owne heires, executors, and administrators, vide­licet, whether he dying, this act shall fixe upon them, like charge and burthen for sa­tisfaction, as upon himselfe should have lyen in case he had lived.

Touching his companions though altogether make but one Executor, yet the misdoing of [Page 37] one shall not charge the rest, nor make their goods liable to recompence: as both appeares by the Booke of entries,Lib. Intra. sol. 327. and was also held in the time of Henry the seventh,K [...]lw. rep▪ [...]ol. 23. Anno 12. of his raigne.So. 11. H. 6. [...]8. a. 4. El. Dy. 210 a. the writ so issued against the waster only P. 4. H. 8. rot. 303. Yea, of the same opinion were the judges twice in the late Queenes time, viz. first in a case betweene Walter and Sutton, in the common place, and shortly after in the Kings Bench in a case between Hankeford and Metford; though these two cases bee not reported in Print.Tr. 34. Eliz. And surely this stands with rules of rea­son or justice,Pas. 36. Eliz. that each should beare his owne burthen; If it were otherwise, many would decline, & abandon executorships as very dan­gerous to the most honest, and faithfull, in case they were subject to wracking by the miscariage of their Colleagues.

As for the Executors, or Administrators, of the wasting Executor dying before hee have born the burthen of his mis-doing; I have found contrary opinions even in the late Queenes time. For first in the Exchequor it was concea­ved to bee as a trespas dying with the person, as comming within the rule,Mich. 31. [...] ▪ 32. Eliz. Actio personalis moritur cum persona. But in the said case of Walter and Sutton, Tr. 34. Eliz. the court of common plees was of con­trary opinion, viz. that this was not escaped by the death of this misdoer, but the law would pursue his Executors or administrators, and lay upon their backes the burthen of recom­pence or satisfaction; for that the testator or [Page 38] intestate doing this wrong had made himselfe to bee debtor in the first testators stead, and therefore they who represent his person must with his goods make amends, and supply; And this later opinion was something in time after the former.Tr. 34. Eliz. Also betweene these two times was there an opinion in the said Court of com­mon plees agre [...]ing in part with this latter: For there a judgement being had against an Exe­cutor,Mich. 32. & 33. Eliz. and the Shriefe upon the Fieri facias, returning that there were no goods, of the Testator in the Executors hands, and then this Executor dying; A Scire fac. upon a sugge­stion of devastation by the said Executor de­ceased was awarded against his Executor, and that upon good debate, and shew of a President left, and reported by M. I [...]our in King Henry the eight his time. And it was then said to have beene cleare, that if a devastation had beene returned in the life time of the said Wast­full Executor, his Executor then should have beene charged. All the doubt was for that heere that was not done in his life time, yet at last affirmatively (as above is shewed) the resolu­tion was.

Touching the third point, viz. to whom the advantage of wasting shall accrue or who by reason thereof shall charge this wasting Exe­cutor. Put wee the Case that the Testator stood indebted to A. by Statute, and to B. C. and D. by specialty, not of record, as Bond, Bill, &c. and [Page 39] the Executor having no more in asse [...]s then on­ly that hundred pound, and this all being due to D. hee payeth him the whole hundred pound not having any thing left to satisfy any of the rest of the Creditors: hereby wrong is done to none but A. who was a Creditor by Statute, and therefore hee onely shall make this Exe­cutor to pay the like summe out of his owne goods, since as to him only this is a devastation, for that it was his election, to pay of thother Creditors; which hee would, no sute being commensed by any of them; consequently no wrong was done to B. nor C. And if no such debt had beene by Statute but all had beene Creditors by specialty, and A. onely had com­mensed sute, and that knowen to the Executor, now if after hee payed all to D. hee stands on­ly as to A. liable in his owne goods, and not to B. nor C. But if the Executor had onely payd a legacy or debt by contract leaving nothing for satisfaction of the debts by specialty, then had hee stood equally liable to each of the o­ther Creditors,If upon fully administred pleaded to one vel aliter, hee have the ad­vantage of this vastation, tak­ing up the whole [...]umme wasted, quae▪ how the Exe­cutor shall re­lieve himselfe against ano­ther. Capiat qui capere potest, viz. hee who first could recover, or by the voluntary act of the Executor, could obtaine payment, must bee preferred: if the summe would reach no further. For it shall by this mis-payment, or misconversion stand with the Executor, as if hee had not payed it nor departed from it at all upon the matter, and therefore I doubt not but it is free for him to give the advantage of this his error, to which Creditor by special­ty [Page 40] hee will, so as hee shall stand free from all the rest, no sur [...]usage remayning, nor any Creditor of record being. For if there bee any debt upon record, the Executor sued by a Cre­ditor upon Bond may notwithstanding this his wasting plead in Barre of this sute; that there is such a record of a debt not satisfied, and that hee hath no more then that debt amounts unto, and so admit so much still in his hands as hee hath misadministred, though in kinde it bee not in his hands, but mispent, or unduly payed, as aforesaid. And what is before shew­ed of the Statutes precedency before Bonds, in taking the advantage against an Executor for devasting or wasting; the same is to bee un­derstood of precedency of judgements before Statutes, and debts to the King before judge­ments, &c.

As touching the [...]ourth point, viz. how far the Executor thus wasting shall incurre dam­mage or make his own goods liable: Doubtles no further then the value of the Testators goods wasted or mis-administred. Therefore if one have advantage thereof to the full summe, no other after shall, for hee is no further a tres­passer or wrong doer, nor is the Testators estate any further, or d [...]epelier damnified. And as damages for trespas are to bee proportioned to the value of the wrong done, and losse sustay­ned: So also in this case the Executor by his misdoing, doth not draw upon himselfe his Testators whole debts, but so much onely as [Page 41] the goods amounted to, which hee did mis-administer, and which should have gone to the payment of the Testators debt, if hee had not so misguided himselfe in the office of exe­cutorship, which default hee must repaire or make good.41. E. 3. 31▪ b. And this proportion seemes to me prooved by the Case in King Edward the third, where the value or quantity is found, specially of the goods administred wrongfully; though there by a wrongfull person, and in Suttons case it was expresly held that each Executor should answer for so much as he wasted.

Now for the fift, and last point, viz. how and in what manner reliefe shall bee had upon this point of wasting, for him to whom it per­taines, first this is to bee observed that in case where the verdit passeth directly against the plaintife, no devastation can come in question, for that no judgement being for the plaintife, no writ of execution can issue, and therefore if upon the issue of fully administred it shall ap­peare that there hath beene a devastation which causeth assets to faile,Pas. 36. Eliz. in 6. reg. then must the Iury finde that the defendant hath assets, and not finde a devastation, as was resolved in the Kings Bench in the late Queenes time be­tweene Hankeford and Metford, for there the jury finding a devastation, viz. a surrender of a lease for yeeres, left by the Testator, it was held voyd, and nugatory, and was not regar­ded by the Court, which said that must come in by the Sherifes returne, viz. upon the Fieri [Page 42] fac. Thus assets being found in the Executors hands, judgement is given for the plaintife to recover his debt, and to have it levied of these assets; nor is this finding of them by a jury against truth, though they bee wasted, and so not to bee had in kind: for the Executor hath them in right, since hee hath not rightfully parted from them according to the rule, Propos­sessore habetur qui dolo (or injuria) desiit possi­dere. As in the case first put, this wasting can­not come in question for want of a judgement for the plaintife, so also where the judgement it selfe extendeth to the Executors owne goods by reason of some false plea whereof wee shall after consider, for since that the consequence, and effect of a vastation is but to make the Exe­cutors owne proper goods liable to the debt of the Creditor, this is altogether needlesse where the judgement it selfe hath layed hold on his goods. But now in case where the judgement extends onely to the Testators goods in the Executors hands, let us finde the way to releive the Creditor, in case the Te­stators goods bee wasted by misadministring or otherwise, for hereabout the right way hath often beene missed, and againe easily may bee. In the latter end of the late Queenes time this course was taken,45. Eliz. Pet­tifers case. viz. the Sherife returning generally that the Executor had no goods,Co. lib. 5. fo. 32 a surmise was entred that the Executor had converted to his owne use the Testators goods, whereupon a writ was awarded to the [Page 43] Sheriffe to enquire thereof by jury or enquest, which he did, and returned that it was found that the executor had wasted the goods; and thereupon a Scire facias was awarded against the executor, to shew cause why execution should not be of his owne goods, and upon two nihils returned, execution was so awar­ded, but a writ of error was hereupon brought. And although it were said for defence of that course that it was usuall in the Cōmon Pleas, and more favourable than the other course, where the Sheriffe only returneth the wasting, or is sole judge thereof, whereas here it was found by an inquest of Jurors, and thereupon a Scire facias awarded; yet did the Court re­solve the contrary, and reverse this execution as erroneous: For it was said that upon the Sheriffes returne of nulla bona, viz. that there were no goods of the testator to be found, the plaintiffe should have a speciall writ of Fieri facias, So 9. H. 6. f. 9. willing the Sheriffe to levie the summe recovered,See Paston 1 [...] ▪ H. 6. 16. 36. up­on surmise that A hath wasted, A. Fieri facias may issue a­gainst his goods onely. If so, &c. either of the goods of the testator, or if it could appeare that the executor had wasted the testators, then to levie it of his own goods; and this way, as was said, the executor hath good remedy by action against the She­riffe, if without just cause hee levie it of his goods;So lib. Intra. f. 11. but the other way, viz. when inquest is thereupon taken, the remedy failes, since neither sheriffe doing according to the inquest, can be punished, nor the jurors finding falsely are subject to any attaint, it being no verdict [Page 44] upon issue joyned, but an inquest of office, which excludeth also all challenge of jurors. And whereas that booke mentions the She­riffes subjection to action onely in case of his mis-feasance or doing wrong, I conceive that hee is likewise suable for omission or non­feasance in this case, viz. for not levying the debt upon the executors owne goods where proofe is made of his wasting. And where the booke mentions this Fieri facias to bee in this manner upon the Sheriffes returne in a Scire facias, Co. lib. 5. 32. doubtlesse the booke therein is misprin­ted, and should be a Fieri facias, for in a Sciri facias the Sheriffe can returne nothing but that he hath warned the party, or that he hath no­thing where by he may be warned. This then is the course there prescribed, that first a gene­rall Fieri facias go out, and that thereupon the Sheriffe returne generally that the defendant hath no goods of the testators, and that there­upon the said speciall writ is to issue; yet in the beginning of the late Queens time the ver­dict passing for the plaintiffe upon the issue of fully administred,2. El. Dy. 185. Woodw. and Chichesters case. the Sheriffe was not permit­ted to make such a generall return of no goods to be found of the testators, but was inforced by the Court upon good advisement, either to leavy the debt, or to returne a Devastavit; and so was done at last by the Sheriffes of London much against their minds; and therupon went out a writ to leavy the debt of the executors owne goods, first into London, and after into [Page 45] Devonshire, upon a Testatum that the execu­tor had goods there: And it was there said, that if no goods could bee there found, then the plaintiffe might have a Capias to take the executors body in execution, or an Elegit for the moiety of his lands. But certainly I cannot find (except with a difference) how this course of inforcing the Sheriffe to doe one of these two can be just; as neither could Justice Ful­thorp, 11. H. 6. f. 38. in the time of King Henry the sixth, ap­prove it. For a Jury of one County may finde assets in another County, as was resolved in the time of King Henry the eight,28 H. 8. Dy. 3. Yea, Co. lib. 6. f. 47. 46. Assets in Ireland, or else-where be­yond the sea, may bee found by the Jury where the acti­on is laid. which yet was understood of goods moveable, and not of lands. This then thus being, if a Jury of Kent find assets which be in London or Essex, how can the Sheriffe of Kent, where the action was laid, leavy the debt recovered by or out of these goods; or since he cannot, why should he be compelled to make a false returne of a wa­sting,For the pl. may if he will sug­gest, the being of assets in a forren Coun­ty, and this is usually done. when the goods remain unspent and un­wasted in another County? Why rather should hee not bee suffered to returne according to truth, that there is nothing within his Countie or Bayliwicke whereof the debt may be le­vied,See lib. Intr. 11. a. Action up­on the case for a false returne of Devast. con­tra sacram. sui debitum. 28. H. 8. since even his oath tieth him to make a true returne, nor is this contrary to the verdict, finding assets generally, and this so returned upon a Testatum, the processe may be directed into the right County. But in the said case it was replied to the plea of fully administred that there were assets in Essex, the action being [Page 46] laid in Middlesex, and yet as it seemes by the booke, the triall was to bee by a Jury of Mid­dlesex, which, saith the booke, may find the assets in Essex; but there the plea was demur­red upon, and held a good plea, which proves that although the transitorinesse of the assets make them subject to the notice of a forren Jury, yet is it not like an act transitory and not locall, for that must be pleaded to be done in the place where the action is laid, though in truth not so. But had issue been joyned upon the point, me thinkes it should be tried in Es­sex, where the assets be laid, the rather for that perhaps they may be reall chattels,2. Ma. Bro. At­taint. 104. and 10. Eliz. Dyer. 271. viz. lands leased to the testator, or other lands of him appointed to bee sold for payment of debts,Because locall and fixed, o­therwise held, 3. Jac. in com. b. Co. lib. 6. f. 46. 47. which as heretofore hath been held, a Jury of another County cannot find. Besides, although such a forren jury may find other moveable assets, yet is at their election, they are not there­to compellable,22. E. 4. 9. and 2. Ma. Bro. Att. 104. as else-where is holden. Here then may be the difference, viz. that if the as­sets be found to be in the County where the triall is,18. H. 7. Kelw. rep. 51. a. there the Sheriffe of that County can­not returne Nulla bona, So held. P. 31. El. in scaccar. So if the proces for execution goe into ano­ther County, than where the verdict. found, as the diff. was held in Scac­car. 31. El. without adding that the executor hath wasted: but if there be no verdict at all touching assets, judgement pas­sing against the executor upon a demurrer, confession, Nihil dicit, or the like; there may the Sheriffe make such a returne of Nulla bona testatoris, without returning any devastation: and so also where the verdict either findeth [Page 47] assets generally not finding in what place they bee,28. H [...]. Dy. 30. b. or expresly findeth them to bee in another County, as a little before wee found, may bee done by a jury of London, of assets in Essex.

In King Henry the eight his time,Pas. 4. H. 8, rot. 303 4. El. Dy. 210. as a little after the said case of Chichester, is by the Lord Dier reported, the Sherife returning upon the Fieri facias, that the Executors had no goods of the Testators, did ad in the same re­turne that one of the two Executors had wast­ed,But 2. H. 6. 12. without any Sci. fac: upon the devast. re­turned, A capi­as was awarded by the court; & see 9. H. 57. Bro. Ex. 57. & lib. Intr. 323. A Fieri fac. abso­lutely, & with­out condition. So. 9. H. 649. 50. A manu-script report. and thereupon a Scire facias was awarded against him, and upon Scire feci returned, and default made, execution was adjudged, and awarded against his goods onely, and this course of Scire facias both the Lord Dier (as else­where I finde it reported) and Prisot temp. Hen. 6. approved. But I am perplexed with doubt what plea the Executor comming in up­on the Scire facias, could plead, for except his deniall of wasting might bee pleaded con­trary to the Sheriffes returne,36. H. 6. f. 3. & Mordant 12. H. 7. Kelw. rep. 24. but vavasor. just. and all thother serjeāts [...] contra. and put in issue so as to cause a new triall after a former per­haps preceding judgement, which I thinke would not bee admitted, then his comming in is to little purpose for ought I can conceive. Heere againe it must bee observed that in the case of Chichester, 2. El. D. 185. the judgement was had up­on tryall of fully administred, but in tho­ther case temp. Hen. 8. it was upon con­fession, which is all one as I take it, with con­demnation upon Demurrer or non sum informa­tus, or triall upon non est factum the Bond [Page 48] or a release to the Testator or the like. Now betweene all these, & that of Chichester there is a broad difference, for there the defendant being convinced by verdit to have assets, which if they continue not in his hands, in kinde, must bee answered out of his owne goods as wasted, therefore the Fieri facias to leavy the debt of the Testators goods, if any found or in default thereof out of his owne goods is very agreea­ble, and pursuant, but in none of thother casess is there any such triall or conviction of the defendants having assets, so as it rests aeque du­bium, whether they have assets or not, and therefore it may seeme somewhat hard, and harsh to send out such a writ in that case,Co. lib. 5. f. 32. Mich. 41. El. rot. 2441. and so should I have thought if I had onely seene the report of Pettifers case;Co. lib. Intr. 269. b. A reco­very of debt precedent was pleaded: Pl. re­plied nul tiell record, & def. would not maintaine his plea. Ideo con­demp. But looking into the record, and finding the condemnation there to bee by Nihil dicit, in effect I cannot uphold any distinction of course in respect of the said difference of cases. Nor indeede doth that course there directed presume that the Execu­tor either hath assets, or hath wasted them, but commands that if assets, &c. then the leavying shall bee one way;If neither, hee must so returne and doe no­thing. if wasting, then another way, so if neither Nihil fiend.

Of an Executor of his owne wrong.

TO begin with some definition, or descrip­tion of this man; Hee is such as takes up­pon him the office of an Executor by intrusion, not being so constituted by the Testator or deceased; nor for want of such constitution sub­stituted by the ordinary to administer. Touch­ing whom we will consider in these parts, and with this method, viz.

1. What acts or intermedlings of such an one not being executor nor administrator by right, shall make him to become an executor by wrong. vide 5. more perstat. 43. E. cap. 8.

2. In what manner, and by what name such shall bee sued, specially when another then is executor or administrator or himselfe after such act becomes administrator.

3. What acts done by him shall stand firme, as if he had been an executor by right.

How farre hee becomes liable to creditors, and how, and to whom. 5. See a late stat. 43. El. cap 8. hereabout.

As to the first,1. And 2. P. & M. sod. Dy. 105. b. it was in the time of Queene Mary doubted, and not resolved whether the onely seising, and taking into ones hands the goods of the deceased did make one executor [Page 50] of his owne wrong without any further act.1. Eli. Dy. 166. & 167. So also Bal [...]. 50. Ed. 8. 9. And in the b [...]ginning of the last Queenes time the Lord Diar said that the post slion, and oc­cupation of or medling with the goods is that which gives notice to Creditors, whom they are to sue as executor. But doubtles Creditors must looke further before suit, for else can they not know whether hee so intermedling bee executor or administrator, nor consequently how to found their suit rightly, and safely for good successe, since a suit against an executor as administrator, or against an administrator as executor, will prove ruinous, and fall to the ground. Yea where an administrator sued as executor did not plead that administration was committed unto him, but generally denied that hee was executor or administred as exe­cutor,13. & 14. Eliz. Dy. 305. 306. the Lord Diar held that it must bee found for him, yet left it doubtfull: but the cleere and safe way had beene to have pleaded the administration, &c. And in the former case the Lord Dyer said,1. Eliz. Dy. 166 & 167. see lib. Intra. f. 322. b. that one intermedling only about the funerall, and laying out money therefore; an overseer or conductor, or hee who hath Letters of the ordinary ad colligend. viz. to get and keepe the goods in safety, and one who intermedleth by vertue of a will truly made, but controlled by a latter will after found and proved, may free himselfe from being an executor of his owne wrong by speciall plea­ding how or in what right hee intermedled, and traversing his administring in other man­ner, [Page 51] and that this traverse neede not, nay may not bee;21. H. 6. 28. 10. H. 7. 28. was held in the time of King Henry the 6th. and 7th. for that such acts amount not to any administring at all:Yet lib. Intra. 322. b. where he confessed a­bout funerall he traversed aliter. and where no administring at all is confessed; such a traverse of not administring in other manner is disso­nant, and not legall. But let us looke backe upon these severall points exempted by the Lord Dyar, Lib. Intra. 312. where by let­ter ad collig. Hee traversed; Absq. hoc. quod & Exec. and wee shall see some cautions necessary touching them, and their safe enter­taynement, first as touching the point of bu­rying the dead, it must bee understood to bee with some expence of the deceaseds goods, and so is it expressed in the said Booke of Henry the 6th. his time: else for a man out of charity,21. H. 6. 28. to lay out of his owne money (not intermed­ling with the goods of the deceased) to bury a friend, hath little colour to involve him so doing in an executorship by wrong: taking the case then that such person layes out or ex­pends of the deceaseds goods or money upon his funerall, heede must bee taken touching the measure▪, and proportion whereabout, though I can give no particular, and distinct ly­mit, yet doubtles either meere necessi [...]y, viz. Church du [...]ies, &c. or at least decent sutable­nesse to his quality must bee the bounds. And herein to speake as I thinke, this latter must either bee utterly excluded, or held within very narrow compasse, for what reason that a Knight or man of higher quality leaving (though perhaps entayled Lands of good value) [Page 52] yet goods not sufficient to pay his debts, should have a hundred pounds or more of that which should satisfie Creditors spent in pompous in­terring of him for his worship,Lib. Intr. 322. and reputation? next overseers may onely bee excused for seeking to preserve, and keepe the Testators goods not in case they expend or dispose there­of.8 and 9. Eliz. Dier. 255 256. He sold blen­ded corne, but there hee plea­ded not the speciall mat­ter. So also for him who is autorized by the Ordinary to collect, for if hee sell or dispose of any (though goods otherwise subiect to perishing) it makes him an executor by wrong, as was resolved in the late Queenes time not­withstanding that by the Ordinaries Letters, he was expresly directed or warranted so to doe, for it was said the ordinary himselfe could not so doe. As for him who administred by vertue of a will after disproved or controlled by a latter, Hee must not doubtles stand free, for the goods before administred, but either as rightfull or wrongfull executor stand lyable to the Creditors.1 And 2. P. & Ma. Dyer. 105. Nor doth every such inter­medling by one out of all these excuses, and evasions, as would bee an administration, make one an executor by wrong. If one doe but take an horse of the deceased, and tye him in his House or Stable, this makes him not an exe­cutor, saith Paston a justice; So of like acts or intermedlings,21 H. 6. 28. as hee that delivers to the wife of the deceased her apparell, at least if it bee no more then is convenient to her degree. But if shee take, or another deliver more then such to her,33 H. 6. 31. 1 Eliz. Dy. 166 shee or hee becomes an executor by [Page 53] wrong: But now let us come to a difference, where there is a rightfull executor, and a will by him proved, or administration committed, for there such light acts or intermedlings shall not make one an executor by wrong,Tr. 37. Eliz. by F [...]nner Just. If one doe any such act as puls the property out of the exe­cutor, he is be­come an exe­cutor by wrong If the goods be aliened by fraud, he who takes them af­ter the execu­tors death is an executor by wrong. Tr. 37. Eliz. as where there is no other of right to be sued. As if one take goods wrongfully frō such a right execu­tor or administrator; This (though he convert them to his owne use) makes him not an ex­ecutor by wrong, but a trespassor to the right­full executor or administrator, who even for these goods once Assets in his hands stands ly­able to suits of creditors, they being neither lawfully evicted nor rightly administred: But in case there had beene no executor at that time, or no Will proved nor administration committed, then such taking of the deceaseds goods into a strange hand had made an execu­torship by wrong.L. 5. E. 472 a. Tr. 2. Jac. in com. b. And thus was the difference lately resolved,Co. lib. 5. 33 & 34. as is reported by the Lord Cooke in the case betweene Reade and Carter in the Common Place.

Yet this further difference was there held, viz. that although there be an executor or administrator by right, yet if a stranger take upon him to receive debts and make acquit­tances, or to pay debts claiming to be an exe­cutor, he is sueable as an executor by this act: and so also in the late Queenes time was held by 6. Just.1 El. D. 166. b. as touching the receipt of debts and making acquittances, but the book mentions not whether any other executor then were, or [Page 54] not. But in the point of bare payment of debts Frowick makes another difference,H. 20. 7. 5. viz. If a stranger do with his own money pay the debts of a friend deceased, and not with the debtors: This is but an act of charity, and makes him not an executor by wrong, otherwise, if with the debtors money. Yet to this another diffe­rence must be added, viz. that if he thus pay­ing with his owne money, have taken into his owne hands goods of the deceased; then is his payment presumed as by or out of the va­lue of these goods, and so makes him an exe­cutor by wrong. Contrarily, if he have no such goods in his hands. And in the point of inter­medling with and disposing of the testators goods where another executor is; this further difference is to be added or understood, viz. That where the goods so taken never came actually to the executors hands, but were in a remote place, there this taker becomes exe­cutor. For as it were mischievous to the exe­cutor if he should by a poss [...]ssion in law cast upon him stand chargeable with these goods in remote places purloyned as assets in his hands; so were it as mischievous to creditors, if neither executor by right, nor this stranger as an executor by wrong should stand lyable to creditors for them. It is true that the right executor may sue and recover damages for them, and that so recovered shall be Assets; but the creditor hath no meanes at the Com­mon law to inforce him to sue, and perhaps it [Page 55] may be a cold suit. And with these additions I think that late resolved difference may stand firm and sound. Yet in former times without such difference the taking only and possession of the goods of the deceased, was held to cre­ate an executorship by wrong, as Belknap said in the time of King Edw. 3.50. Ed. 3. fo. 9. and especially if the act were such as removed the property out of the right executor,Tr. 3. Eliz. as Just. Fennar in the late Queenes time said, Teste meipso.

How and by what name suit shall be against such, and the like.

TOuching the second point, viz. in what manner suit shall be against such:2. Point. First in generall, this usurping executor is not in suit to bee distinguished by name from the right executor,L. 5. E. 4. 72. Co. lib. 5. 30. 31. & 33. b. 21 H. 6. 8. but to be sued generally by the name of executor, of the last Will and Testa­ment of the defunct, and then if he will deny himselfe so to be, he must pleade, that he nei­ther is executor,Co. lib. Intra. 144. but 145. a. i [...] the verdict. hee is called Exec. De nju­ria sua propria. nor hath administ [...]ed as exe­cutor: Then the plaintife must prove that he hath administred in some such or the like sort as aforesaid. And it hath beene divers times held,39 H. 6. 45. 46. that where there is a right executor, and yet another doth administer by wrong,21. H. 6. 8. 19. it is at the election of Creditors either to sue them joyntly together,9. E 4. 14, 15. or one or both of them se­verally and by himselfe.1 & 2. P. & M. Dy. 165. 33. H. 6. 38. But if where admini­stration is committed, another also administers [Page 56] by wrong, these cannot be sued together as administrators;35. H. 6. 31. for though one may be an ex­ecutor by usurpation or wrong, yet none can come to be an administrator by wrong, since no other but such as receiveth that power from the Ordinary can so be; therefore in that case there is a necessity of suing him apart and by himselfe (who so usurpeth administration) by the name of an executor. So if A administer the goods of B. not being executor nor admini­strator, and after his such doing and disposing of the goods he obtaineth administration of the goods of B. but the goods left or comming to his hands since the administration commit­ted suffice not without the other debts recei­ved or released, or goods sold before, to satis­fie creditors. Now if any sue A by the name of administrator, [...] R. 3. 20. he shall have no further re­liefe then according to the value or extent of the goods left in or come into his hands since the administration committed, and if those be fully administred, he shall get nothing. If they remaine unadministred, but amount not fully to his debt, he must want so much of satisfacti­on. And if he will be releeved or satisfied out of the goods before disposed of, he must sue A as executor of B: 21. H. 6. 8. If the administra­tion were com­mitted before the suit began, the writ shall abate▪ else not, as was of old conceived. and so was it ruled and re­solved by Gawdy and Suit, Justices in the Kings Bench in the late Queenes time, viz. Tr. 30. Eliz. And if this now administrator will pleade in abatement of this action, that administration was committed to him, and demand judge­ment [Page 57] if suit shall be against him as executor. Then the plaintife must in this replication as I take it, set forth the speciall matter, viz. how the defendant did administer before admini­stration to him committed. But if one to whom administration is committed do devast, and this administration is by suit repealed because he was not the next of kinne, and administrati­on is committed to another; now a creditor who would be relieved out of the goods wa­sted, must sue that first as administrator and not as executor of his owne wrong, said Pop­ham Chiefe Justice, for he did rightfully admi­nister for that time.

As for the third,3 Point. viz. how farre this execu­tor of his owne wrong,How far liable to creditors. becomes lyable and obnoxious to suite; consider we these things; first he becomes subject both to the action of the executor who hath right to the goods wrongfully intermedled withall by him though it were before proving of the will, and also to the action of the creditor who hath right to the satisfaction of his debt. Secondly,Yet hee must looke to his plea, else by it he may draw al sued for, upon himselfe, as if he deny his be­ing executor or administrator. as touching the measure how farre hee is ingaged, doubtlesse hee is not by his wrongfull administring become chargeable with the whole account of the testators debts, but only so farre, and with so much thereof, as the goods which he so wrongfully administred amount unto, and this seemes to me proved by the case in the time of Edward the third,Co. lib. Intr. 144. 145. Plu [...] de [...]oc. where the inquest found not only the administring or [Page 58] intermedling by the executor wrongfully, but found also by direction of the Court (as it see­meth) what the value was of the goods so wrongfully administred, which had not beene materiall, if the administring of a peny had made one as far chargeable as the administring of a pound. Besides, if it be so that a rightfull executor wasting goods of the testator to the value of twenty pounds, shall be no further charged than that value; then doubtlesse so shall it be also in this case, for both be wrong­full administrations: only this difference there is betweene them, that in one case the admini­stration is by a wrong person, and in the other case in a wrong manner.1. El. Dy. 167. cap. 12. Nay, the Lord Dyer doth not sticke to call him, who administreth wrongfully, or in undue manner, expresly an executor by wrong, in the case of Stokes a­gainst Porter, though he were rightfully execu­tor, because he did dispose or execute wrong­fully.

As to the fourth,4 Point. viz. what acts done to him or by him who is an executor of his owne wrong,What acts of his of force. shal stand firme and good, as done by or to the right executor. Suppose, first, that the de­ceased were indebted to him twenty pounds who thus usurpeth executorship, whether may he pay himselfe or not? And this point was in debate in the Kings Bench betweene Coulter and one Ireland, M. 40. 41. Eliz. Co. lib. 5. f. 30. executor of Hunt, where it was strongly objected, that notwithstanding the rightfull executor or administrator might [Page 59] punish him, and recover against him for the goods which hee administreth; yet another creditor suing him as executor generally, and so affirming him to be (for there is no speciall forme of writ or declaration to distinguish an executor by wrong from a rightfull executor) he stands as against him in the state of a right­full executor, and therefore may first pay him­selfe before he pay others; and of that mind at the first were Fenner and Gawdy, Justices, yet did they admit that this payment should not stand good, as against the rightfull executor or administrator. And Popham and Clinche held strongly that neither should it stand good a­gainst other creditors, for then every man would rush upon the testators goods and be his owne carver in payment: And whereas it was said at the barre, that the Lord Anderson upon an evidence at Guild-Hall had ruled it other­wise, Popham at another day of debate of the said case, related that the L. Anderson did deny that he ever so ruled, or was of that opinion; and further informed that both he and Justice Walmesly, Periam and Clarke, Barons, did agree with Popham and Clinche in opinion. After which, Justice Gawdy, as also Fenner, if I mi­stake not, changing their opinions, and concur­ring with the rest, judgement was given accor­dingly. In the debate of this case, question was made, if such an executor by wrong pay a debt to another creditor by specialtie, whether this shall not stand firme and good, since hee [Page 60] stands lyable to creditors so farre as the goods by him administred doe amount, and it was a­greed by the better opinion at least that this should stand firme and good, so as if the pay­ment were out of his owne goods, he might re­taine to himselfe in liew thereof so much of the goods of the testator, for here he doth not, as in the other case, advantage himselfe by his owne wrong. Yet that opinion allowing this payment to creditors must, as I think, bee un­derstood with this difference, viz. that this payment shall stand as against other creditors, but not as against the right executor or admi­nistrator, for then any stranger might usurpe the office of executor, and take from him that liberty and election to preferre which creditor he will in first payment; yea, might take from the executor power to pay himselfe before o­ther in case there were a debt due to him, which were very unreasonable.

Of addition and alteration by the statute 43. Eliz cap. 8.

WEe having considered what the Com­mon law is,5 Point. and willeth in the premi­ses: Let us now see what alteration or addition a late statute hath made. In the last Parlia­ment of the late Queene Elizabeth, considera­tion being had of subtill getting into mens hands goods of an intestate by deed of gift, or letter of atturney from one of small or no abi­lity [Page 61] to whom such subtle contriver hath procu­red administration to bee committed, and so himselfe would stand free from the sute of Cre­ditors, the administrator himselfe either not be­ing to be found, or not being of any valew to sa­tisfie Creditors. It was therefore enacted that every person, receaving or having any goods or debts of any intestate, or any release or discharge of any debt or duty belonging to him upon any fraud as aforesaid, or without consideration of or neere the value (except in satisfaction of some just, and principall debt to the value of the goods or debts due from the intestate) shall be charged as Executor of his own wrong so far as the value of those goods, and debts amount; deducting all principall iust debt to him due, and all payments by him made, which a lawfull Exe­cutor ought to have paid. Heere have wee a touch of all the parts precedent, or at least three of them.

1. Wee have first a new Executor by wrong though intermedling under the title of an ad­ministrator.

2. We have a limit of the charge by him in­curred sutable to our former expression.

3. Lastly, we have to him an allowāce of debts owing to himselfe or duly paid to others, which is more then wee have conceaved allowable to another Executor by wrong.

Of pleas by Executors, and which bee best, which most prejudiciall to them.

SInce amidst the Plees pleaded by Executors there is such difference as that some induce one kinde of judgement, some another, some drawingmore losse, & burthen upon Executors then others: Let us consider of the differences, so as light may bee taken to choose the safest or fittest for each case.

If an Executor doe utterly estrange him­selfe from the executorship;Plea; denying the Executor­ship. saying that hee was never executor nor ever administred as Executor (for that must bee added) then if issue bee taken upon this plea,21. H. 6. 19. 20. Bro. 62. and it bee found against him;2 E. 4. f. 4. 1. 9. H. 7. 15. the plaintiffes shall have iudgment to recover not dammages only, but even the debt it selfe out of the proper goods of the Executor, if none of the Testators can be found to satisfie it.Lib. Intr. 322. 333. 33. H. 6. 33. 34. And this shall bee thus not onely where it is found that the defendant was made Executor by the will, and proved it, and so could not chuse, but know it, but even also where hee had never proved the will whereof hee was made Executor, nor ever administred by vertue thereof: yea though hee did before the Ordinary refuse to bee Executor of this [Page 63] will, or to intermedle with the execution there­of; yet if any other named Executor with him did prove the will, or did not refuse to bee Executor, let such other refuser take heede of pleading that plea. For truth is against the first part of his plea, viz. that hee never was Executor; and so the verdit which must bee veritatis dictum, must needs passe against him, and make his owne goods lyable as well to debt as dammages. What if no other were made Executor but this onely who refused before the ordinary, may hee safely pleade that he ne­ver was executor? I thinke not, since hee so was executor before his refusall,He was suable as soone as the Testator was dead. that hee might have released all debts due to the Testator, and given away all his goods, therefore I thinke hee must plead specially shewing his refusall, andnot generally deny his being Executour.

Nay admit hee never was once named, made or intended to bee made executor, yet having pleaded this Plea, that hee never was executor nor administred as executor, if it shall bee found by verdict that hee did administer or intermedle as executor,But if hee did it as Adm. it is otherwise, yet see that specially plea­ded Co. Lib. Intr. 148. a. the same blow or bur­then falleth upon him, for then the latter part of this Plea is found untrue, yea the whole upon the matter, for by his administring hee became an executor of his owne wrong, and the deniall of this executorship by wrong or usurpation shall bee as penall to him as the deniall of a rightfull executorship.See Co. Lib. Intrac. Judgm. so entred fol. 145. b. Read & Carters case. The like Law where the executor pleades a release made [Page 64] to himselfe, or a payment of the debt or other performance of the condition made by him­selfe. Nay I finde in this latter case the iudge­ment entred generally against the defendant, as against another,Co. Lib. Intr. 29. a. not first de bonis testa­toris si, &c. See Bro. Ex. 22 these reasons for this diff. for his owne debt, not being executor. And the reason why the Law makes these so penall to an executor is, because his Plea is not onely false, but the falsehood there­of was wilfull, since it must of necessity bee knowne to himselfe to bee so. And lastly for that all these Pleas, if they had proved true, had beene perpetuall barres at least against the defendant,33 H. 6. 23, 24. the first indeede had not beene a barre against another being in truth executor or administrator. But if the executor had pleaded a release made to his Testator, finding such an one among his writings which yet was either forged or never both sealed and deli­vered by the plantife as his deed,So of other per­form. Co. Lib. Intr. 133. a. or if hee pleade payment made by his Testator, neither of these Pleas found against him shall cause the judgement to fasten upon his owne goods,6 E. 4. 1. 7 E. 4. 8 So Bro. Ex. c. 22 that the Book contrarily re­ported 34. H. 6. 22, 23. is erro­neous, as was descryd by Fitz. & al. 23. H. 8. the Record being not so as the Booke saith the judgement was. so if hee denyed the Bond or Bill, whereupon the Sute is grounded, to bee the Testators deede. For in all these cases the truth being not knowne to him, hee might honestly, and reasonably conceive it to bee as hee did plead. But what if hee plead fully administred, and this bee found against him, which rested in his owne knowledge? shall not this false Plea expose his owne goods in defect of his Te­stators to the satisfaction of this debt? no it shall [Page 65] not for that though this were a false plea, & that within his owne knowledge, yet was it not a perpetuall [...]rre, for if it had beene so found as was pleaded, yet assets coming after to the hand of the Executor, the plaintife should then have reliefe, and satisfaction out of these since accrued assets. If any aske how assets may after come, I will give him two or three instances. First, it may bee by recovery of debts before withholden, or of damages for goods taken away, or by voluntary payment of a debt not before due, for that the time of payment was not come. Secondly, if the Testator having a lease for twenty yeeres did demise the same to I. S. for the whole terme, if hee so long should live, if hee were alive in time of the former verdit, but now is dead, the terme continuing, this is now assets which before was not, whilst it was but a possibility of a terme. Other instances might bee given, but these may suffice.Lib. Intr. 148. 149. This good though the judg. were by non sum inform. & no averment that it was without covin. If the Executor pleaded that the Testator stood bound in such a Statute, or that there was such a judgment against him of debt to the King, beyond the satisfaction whereof the goods would not reach: This is in effect a fully administred, though speciall, and not generall, and the Law is alike (as I take it) in all these cases as to the not making of the Executors goods lyable.Co. Lib. Intra. 152. But in all these causes though the debt shall not bee adjudged upon the Executors owne goods,11 H. 4. 5. There a cap. ad sat. was awar­ded for the Dammages. yet the dam­ages shall, in default of the Executors goods [Page 66] to satisfie them. And in these cases it is not ma­teriall whether the judgement passed upon trial or demurrer. Nay if the defendant Executor plead no plea, but confesse the action generally, or bee condemned by Non sum informatus, the judgement is the same, viz. to record the debt onely out of the Testators goods, and the damages of the Executors goods in default of the Testators, what if the Executor defendant, confesse that hee have assets to the value of part of the debt, not of the whole; there for so much as is confessed the plaintife may pray, and have judgement presently without dammages,But hee may I think forbeare so to doe, and to the judge­ment for part ad that when more assets come hee shall have more. Lib. Intracion. Fol. 223. and may maintaine for the residue of the debt that the defendant also hath assets for the rest, and so goe to triall, as appeares both by the printed Booke of entries, and another manu­script which I have; But what if this triall passe against the plaintife? shall hee then have an ad­ditionall judgement for dammages in respect of the former? I thinke hee shall have costs, which commonly runne, with or in the name of dammages, but without a writ to enquire of dammages, none being found by Verdicts, the Court doth not usually adiudge dammages: yet in the Booke of entries I finde 6s. 8d.Fol. 542. dam­mages assessed by the Court upon a confession in a writ of Rationab. parte bonorum against Executors, and this hath much affinity with the action of debt. Yea, in the very action of debt where the Iurors for miscariage after their de­parture from the Barre were fined, I find that [Page 67] the plaintife renouncing the assesment of dam­mages by them made;M. 28. H. 6. Ro. a. 321. and praying the Court to assesse the same,Lib. Intra. 329. a. it was done accordingly, but this was a speciall case.

Whereas wee before shewed that an Exe­cutor denying his executorship shall if it bee found against him, pay the debt of his owne goods for his false plea; This thereabout oc­curreth to bee added, viz. that that is onely where the immediate executorship of the de­fendant is denied. For if B. bee made Exe­cutor by A. and B. dying makes C. his Executor; now if C. bee sued for the debt of A. as Exe­cutor of B. Executor of A and hee denyeth that B. was Executor of A. which by consequence is a deniall of his being now Executor of A. yet if this fall out in triall against him, hee shall not in his owne goods stand liable to this debt; because it is possible that hee might not know to whom his Testator was Executor. So if A. See Lib. Intr. 322. made B. C. and D. his executors, and E. is sued as executor of D. the surviving exe­cutor of A. if E. deny that D. his Testator survived B. and C. by consequence whereof hee denieth the truth, viz. that the executor­ship of A. is devolved to him, yet shall not this found against him, charge his owne goods, for hee might bee ignorant of this point in fact, viz. whether B. C. or D. lived longest. And heere hee denied not his owne immediate exe­cutorship, but a mediate or more remote exe­cutorship; and so I thinke is the Law where [Page 68] C. being sued as executor of B. executor of A. hee pleades that A. by a latter Testament made himselfe executor which is found against him, so as heere hee falsely pleaded, and pre­tended himselfe to bee the immediate execu­tor of A. and so denied the mediate executor­ship, viz. of B. to A. and of him to B. yet Quere of this, for why should not as well his false making himselfe an executor immediate to the indebted Testator charge his owne goods as well as his false denying of that exe­cutorship; since both plees tend to the over­throw of the plaintifes action, and each equally rested in the defendants knowledge. But this difference is betweene them apparant, viz. that the deniall of executorship, if true, is an utter, and perpetuall Barre to the plaintife, as against him so pleading; but the affirming of an immediate executorship where hee was sued as executor mediate, doth not so it true, but directs the plaintife to a better writ or action, viz. against him as immediate executor to the indebted Testator.

Where we have before touched upon the comming of Assets futurely to executors, I think it not amisse to consider a little the forme and frame usuall in pleas of fully administred which thus runne, viz. Quod die impetr. & plene administravit omnia bona & catalla quae fuerunt praed. Lib. Intr. 151. S. temp. mortis suae, & nihil hab. de bonis, &c. quae [...]uer. praed. S. temp. mortis, &c.

[Page 69] Thus tying his deniall upon the things which were the testators at the time of his death.7. H. 4. 39. Bro. 50. This plea is not good per cur▪ because some may ha [...] since accrued. What if then the executor have at the time of this plea pleaded goods with were not the testator [...] at his death, but since accrued as before is shewed, or perhaps a lease for yeares sold by the testator upon condition to be void, if five hundred pounds not paid at such a day, which hapning after the testators death and default made, the terme returneth; Or if the executor by a writ of error reverse a judge­ment given against his testator for two hun­dred pounds, and so is restored thereunto: May the plaintife now reply generally that he hath assets which were the testators at the time of his death: How can the Jury so finde, when the truth is not so? Surely this case is not com­mon, nor can I shew a president of a speciall plea therein. But in reason me thinks it should be specially and not generally pleaded and set forth in the replication. And in case where one sued as executor denieth that he was ever exe­cutor or administred as executor,Lib. Intrac. 322. a. b. but a place must be shewed. So 21 H 6. 19, 20. Bro. 62. I finde some­times the replication generall that he did ad­minister without shewing wherein or how, and sometimes speciall shewing what thing was administred and where. Here note, that the executor defendant denying (as he must) two things, viz. 1. That he never was executor; 2. That he never administred as executor▪ the plaintife in his replication is tyed to maintaine but the one of them as the truth of the case is; [Page 70] that is, if in truth the defendant were made executor, but never did administer, now it must be replyed that he was made executor at such a place, without speaking any thing of his administring. On the other side if he did administer, but were not made executor, then only the administring is to be replyed;So done Co. lib. Int. 144. b. but if it shall be found that the defendant had admini­stration to him commited and so administred by vertue thereof, then is the verdict to passe for the defendant, for this is no administring as executor, and upon a generall deniall there­of this may be given in evidence, as the Lo. Dy­ar reports to have beene resolved.Mich. 13. & 14. Bliz. Dy. 305. But if the plaintife do in his replication maintaine both the points, shall this make his plea double? Me thinks it should, yet I finde it so replyed, and no exception taken for the doublenesse.Lib. int. 322. b. Tr. 17. H. 8. Rot. 28.

A sole woman being executor maketh a deed of gift of the testators goods in trust,Tr. 37. Eliz. but continueth possession of them and marrieth J. S. who also hath possession of the goods, and in an action of debt by a creditor fully admini­stred is pleaded: now upon evidence the ver­dict shall passe for the plaintife; for this aliena­tion being fraudulent was void as to all credi­tors, and so as to the plaintife the goods conti­nued the testators, and so assets in the defen­d [...]nts hands, as was held in the Kings Bench. If fully administred be pleaded where the defen­dant hath assets for part but not sufficient for [Page 71] all, and so it is found, yet shall not judgement be given for the whole,Yet Finch. 46. E. 3. f. 9, 10 held the contrary, viz. that judg­ment should be of the whole, but execution onely for so much, & a Sci. fac. for the rest when more as­sets. but for part presently with a further award, that when more shall come to the executors hand, the plaintife shall then have further judgement for the rest, so as that false plea doth him no prejudice, but makes him in as good state, the charges of tri­all excepted, as if he had confessed himselfe to have part. And I think the plaintife upon that confession of part may pray the like judgement without maintaining that the defendant hath sufficient for the rest; for if that be not true, why should he be put to the charge of a triall by Jury: yea Sir Edw Cooke at the Barre Tr. 36. Eliz. See Co. lib. 8. f. 134. said, that where fully administred is plea­ded, the plaintife is not tied to maintaine the contrary, but may presently pray and have judgement to recover it when assets shall fu­turely come to the defendants hands, which was denied by some; but truly me thinks the law should be as he said as well as in the for­mer case, where for the part which the defen­dant had not assets to pay, it so was done upon verdict so finding. But there, as I conceive, it was not a present judgement, but an award that he should have judgement futurely; so as after whē assets come to the defendants hands, the plaintife must have a Seire faeias against the defendant, to shew cause not why he should not have execution, but why he should not have judgement as I take it, yea where it is found for the defendant, that he hath fully ad­ministred, [Page 72] yet was is held by all the Justices, 33 Hen. 6. 23, 24. and by [...]riso [...] 34 Hen. 6. 24. that when assets after come to his hands, the plaintife shall have a Scire sacias to have satis­faction out of them, but there Markham, Yelver­ton, and Forteseu, were of contrary opinion, and so was the whole Court, 4 Hen. 6. fo 4▪ And it stands with great reason, that where upon a verdict fully found against the plaintife,So 19 H 6. f. 37 [...] 4. f. 24 See judgement so entred. Co. lib. Intr. 151. b. judg­ment is given quod nihil capiat per breve, there he cannot have any writ to execute the judge­ment for him, but is put to a new action of debt; yet where it is found that the defendant hath assets for part of the debt, but not suffici­ent for the whole, there it is very congruous that the plaintife have presently judgement for part, and after when more commeth, then by Scire facias against the defendant obtaine judgement and execution for the rest; [...]o 7 E. 4. f. 9. for here both verdict and judgement were for the plaintife against the defendant, whose plea, that he had no goods, was false, and so found by the jury. And this difference was strongly avowed by Serjeant Hanham, Mich. 33. 34. Eliz. and after approved by Fenner Iust. 36. Eliz. none contradicting it,It is 11 H. 6. 40, 41. yet a book was cited, that the plaintife recovering so much as was found in the executors hands should be amersed for the residue, which Popham Chiefe Iustice deni­ed to be law.

Chap. XVI.
Where judgement shall be against the Execu­tors owne goods, though no plea of the de­fendant nor vastation do so occasion, and of the severall manners of judgement in severall cases.

HOw by wasting, called by us commonly, a Devastavit, an executor may draw down the execution upon his owne goods, hath for­merly beene handled and discoursed of, as also what kinde of pleas doe make the executors owne goods liable to the debt, and what not. Now let us see where without mis-admini­string or mis-pleading, yet the nature of the a­ction shall lay the whole debt or thing recove­red upon the executors owne goods. And this we shall finde in some few cases, 1. Where an executor is sued for rent behinde after his te­stators death, upon a lease for yeares, made to the testator, and by him left to his executor. Here it shall be adjudged and levied upon his owne goods, for that so much of the profits as the rent amounted to shall be accounted as his owne goods, and not his testators, therefore is he to be sued as well in the debet as the detin [...]t, where in other cases he is not, but in the detinet only being sued as executor. So if any thing [Page 74] delivered to or detained by his testator come to his hands, and he still detaines the same af­ter the demand, and be thereupon sued in an action of detinue, for this is his owne act, nor in this case need he to be named as executor, for he shall not answer damages for his testa­tors detaining. So if he assume to pay a debt of his testators having assets, and be sued upon this Assumpt. the which debt is to be recove­red in damages, and that upon or out of the executors owne goods, yet is this action and the assumption which is the ground thereof founded in the executorship and his having as­sets, for if either he had not beene executor, or if he had not assets at the time of the promise, it had beene nudum pactum, 5 Mariae fol. 182. and would not have bound him nor given good cause of suit. Nay to go further, in the case of assumption by the testator, and suit against the executor, thereupon we finde the judgement in M. Plow­dens Commentary given against the executor generally, as if he had not beene an executor, not fixing it upon the testators goods,Reade & Nor­woods case. yet there the very debt it selfe is included in the dama­ges.Co. l. b. Intr. fo. 1. 2. But contrarily was it after in the seventh yeare of the late King, viz. judgement given, that as well the damages as the costs should be levied of the testators goods, if so much in va­lue of them were in the defendants hands; and if not, then the costs only of the goods of the executor. And this surely is the righter and more just way, for there is no reason, that up­on [Page 75] on a promise, more then upon a bond, the law should cast the whole debt upon the back and state of the executor. But perhaps the two judgements may be reconciled thus, the later was given upon a verdict non assumpsit, being the issue, and there the Iury assessed damages in certain, viz. two hundred fifty three pounds with the costs. So as here the judgement was compleate and full, viz. to recover the said summe, but in the other case the judgement was had upon a demurrer, so as the damages not being knowne, it was generally that the plaintife should recover his damages against the defendant. Sed quia nescitur quae damna, &c. because it appeareth not to the Court what the damages were, therefore a writ was awarded to inquire of damages, upon the return where­of executed, the judgement was fully and compleatly to be given of a summe in certain, which second judgement it appeares not by the book in what manner it was entred, and therefore might perhaps bee then agreeable with the other. And that the said first judge­ment before damages inquired of is not a ple­nary & full judgement,Tr. 30. Eliz. but an award of judge­ment hath beene divers times resolved,Pase. 33. Eliz. in com. banc. and that therefore any defect and insufficiency in the declaration may be shewed time enough after the first, and before the second judge­ment. Yea if the plaintife dye before the se­cond judgement, though after the first the a­ction falleth to the ground: So if the defen­dant [Page 76] dye, otherwise of death after full judge­ment. But this notwithstanding, and howso­ever it there were done upon the second judg­ment, me thinks it were righter and fitter that the first judgement should expresse that the damages should be had and levied out of the testators goods, for whom and in whose right the executor is sued.

Another case there is wherein the judgment must be as it seemes against the executors own goods,So for rent be­hinde since the testators death. viz. in an action of covenant for a breach of covenāt since the testators death;Co. lib. 5. fo. 31. the suit is in the debet as for his own debt. for so was it held both by all the Judges of Common Pleas, except the L. Dyar, M. 14. & 15. E­liz. and by the pregnotaries in the late Queenes time, where the case was of an house upon the lease negligently burned in the executors time, for which damages only were to be recovered. And sometimes where the executor himselfe is so to beare the burthen,Lib. Intr. 329. a. & b. De terris & catallis, &c. I finde the judgement entred that the summe recovered shall be levied of the lands and goods of the executor.

Chap. XVII.
Of women covert Executors.

THere being two kinde of persons who have some disability upon them, viz. Femme coverts or married women and infants, touching whom we find in many pla­ces [Page 77] question and disceptation in our bookes: We will consider of them by themselves, or a­part from others, yet not joyning them toge­ther neither, but each by himselfe separately.

First therefore of Femme coverts, touching whom we will consider these three things.

First, whether they may make Wills and 1 executors with or without their husbands as­sent, and how, where, and in what cases.

Secondly, whether they may be made exe­cutors 2 without their husbands assent, or how their husbands may hinder it.

Thirdly, what acts in execution of the exe­cutorship 3 they may doe without their hus­bands, or their husbands without them.

A woman married,Sect. 1. or femme covert, wee know is Sub potestate viri, cui in vita contradice­re non potest, as saith the writ given by the Law to the wife for recovery of her land after her husbands death, being aliened by him. There­fore it is that Judges,Sola & secreta examinata. when a woman is to ac­knowledge a fine of any land, doe examine her apart from her husband, to know whether she bee willing, or come to doe it by the com­pulsion of her husband: It is therefore hard for her to have freedome of will, and conse­quently freedome to make a will. Besides, all her moveables or goods personall,Debts except which are not properly good. which shee had at the time of her marriage, otherwise than as executrix or administratrix, are by the Law totally devested out of her, and setled in the husband as fully ipso facto upon the very [Page 78] marriage, as any other that were his owne be­fore: Of these therefore she can make no dis­position, no more than of other her husbands goods. But in case shee doe by will bequeath them, although the will and gift be void, yet if the husband,5. Ed. 2. Fitz. devise. 24. as the case was in the time of Edw. the second, do after his wives death consent to this her will & gift, by delivering of the goods bequeathed after her death, or assenting that the legatee take them by vertue of such will and gift; this amounteth to a new gift by the husband. If a woman have a lease, an estate by extent, a wardship, the next avoydance of a Church, or other chattell reall; these are not devested out of her into her husband by mar­riage, but in case she over-live him, they con­tinue to her as before, no alienation or altera­tion having been made by the husband, who had power to dispose of them by gift in his life-time, though not by his will; yet such a wo­man in her husbands life-time could not of or for these things, without her husbands assent, make an executor or will, but she dying before him, they would, by the operation of law, ac­crue to him. And here then observe a case, though not frequent, yet full of mischief when it happens: Suppose that a woman indebted a thousand pounds, and having leases and move­able goods to the value of three thousand or foure thousand pounds, marrieth with I. S. and then dyeth before the debt bee recovered a­gainst her: in this case the husband shall have [Page 79] and goe away with all this value of his wife, and is not in law lyable to pay one penny of her debts,During her life hee is, but not after. because hee is neither her executor nor administrator: What the Chancery could doe, or rather what the Lord Chancellor or Lord Keeper would doe in this case, I will not take upō me to say or determine. Another sort or kind of goods, or rather interests a woman may have, viz. debts or things in action, which as the former are not devested out of her by marriage into her husband,But the hus­band may re­ceive them, or release them. nor yet can shee thereof make an executor without her hus­bands assent, although they be one degree far­ther from the husband than the said chatels re­alls, for that though th [...] husband doe overlive the wife, he shall not be intitled to them as to the former:12. H. 7. f. 22. But if his wife make him execu­tor,The husband was sued in Spirit. Court. as executor to his wife. as she may, or if after her death hee take administration of her goods, then as he is there­by intitled to them, so is he lyable also to pay her debts out of the same, when he shall have received them.

Lastly,So she is often to former hus­band, and to fa­ther &c. Dato, that a woman covert is execu­trix to some other person, and in that right hath goods moveable; these are not devested out of her, because she hath them not meerely to her owne use, but as representing the person of another: But whether then may she with­out her husbands licence or assent in respect of her being an executor, and for continuation of this executorship make executors, and con­sequently a will or not? Hereabout hath been [Page 80] much diversity of opinion: Some books ge­nerally speake that the wife may make an exe­cutor, but speak nothing of the husbands as­sent,39. H. 6. f. 27. whether necessary or not. Else-where we find it mentioned, that if the husband after the wives death countermand (some bookes false printed say command) the proving of his wives will,34. H. 8. S. Bro. Testamēts 21. then it loseth all force, or becommeth void and of no value: but in this case is no mention in what state this wife stood viz. whe­ther she were executor or not, no nor so much as whether she had any thing in action or cha­tell reall or not, so as nothing in particularity can be grounded upon that case. But there are expresse opinions that the husbands assent is absolutely necessary even in this case,18. E. 4. f. 11. Vavasor Inst. so as without it the wives making an executor shall be meerly void, and consequently, he to whom she was executor, shall now by her death bee dead intestate. And of this opinion was Ba­bington, chiefe Justice in the beginning of Hen­ry the sixt his time:4. H. 6. f. 31. Yet contrary hereunto was the opinion of Fineux chiefe Justice in the time of King Henry the seventh,12. H. 7. 24. b. viz. that where the wife is an executor shee may also make a will and an executor without any consent or assent of her husband.Tit. D [...]vis. f. 27. And to this opinion doth Ma­ster Perkins after consideration of the bookes on both sides incline. But some will say that since all this in the late Queenes time this hath been contrarily resolved, [...] 29. Eliz. in [...]. viz. in the case be­tween Andrew Ognell plaintiffe, and Ʋnderhill [Page 81] and Apleby defendants, in the end of which Case, it is in expresse termes said to have beene then resolved that a femme Covert or married woman,Cooke lib. 4▪ 51. b. could not make an Exe­cutor without the consent of her Husband. To this I answer that this Case is to bee con­strued with relation, Ad materiam subjectam, viz. to the matter, and point in question, and under consideration; which was that state of a woman whereof wee have before spoken, viz. one having things in action debts or duties to her belonging, a [...] therein particular it was arrearages of rent due to the woman before marriage. As for the point of a woman exe­cutor to another person, it was never in that Case, under disceptation, no nor once mentio­ned in the debate or arguments thereupon. Now considering the very forme, and phrase of judgements at the common Law, which are thus, viz. Ideo consideratum est per Curiam, &c. not Adjudicatum est, that is, it is considered by the Court, not in expresse termes, that it is adjudged: This I say well observed (as to mee it seemes very remarkable) gives us to know that no more is adjudged then is considered of, the judgement being contayned, and clas­ped up in the word Consideratum est. VVhere­fore since in Ognells Case, the point of a wo­man coverts ability in Case where shee is an Executor; To make a will, and Executor hath not beene considered of the eyes, tongues, nor thoughts of the Judges, being not once set up­on [Page 82] it; It cannot bee, that that point is there resolved or adjudged. Besides, even in a few words expressing as to mee it seemes, the rea­son of that resolution, it appeares not to have beene the intent of the Judges, that the same should reach or extend to this Case, of a woman covert executor: for it is added (as the reason of the judgement in my conceiving) that the administration of the wives goods doth of right belong to the husband, which amounts to this in my understanding, viz. that where the wives making of a will▪ and consequently of an Executor, may bee prejudiciall to her husband, and prevent him of some benefit or advantage, or tend to his losse, and dis­advantage, there it shall not bee avaylable or effectuall without his assent, and therefore not in the Case of her, who having debts or duties to her due, would by making another to bee her Executor exclude or preclude her hus­band from that benefit, which to him should pertaine as administrator of her goods. Now as for the goods debts or credit to her as executor to some other pertayning no benefit could re­dound to the husband, by having such admi­nistration of his wives goods, for those should goe, and bee to the next of kinne of the wives Testator taking administration De bonis non administratis of him, if [...]hee have no Exe­cutor, & therefore her making an Executor as touching these brings no hurt nor prejudice to her husband, and so is out of the reason [Page 83] of Ognells Case. Since then it is so, and since the Law favoureth wills, and it was by im­plication part of his will who made her Exe­cutor, that shee should have power to continue his Executorship by making another to suc­ceed therein after her decease for performance of his will; why should the Law give to the Husband who can receave no prejudice there­by, power to give impediment thereunto; for Frustra est inutilis potentia, even reason it selfe frames, and awards against him in this Case a Quare impedit, or rather a Non impe­diet, as to mee it seemes. Wherefore to con­clude, I take it that the opinion of Fineux is good Law in that point of a f [...]me covert Executor, though not in the other point, where shee onely hath debts, or things in action to her selfe due, for therein the said resolution in Ognells Case, grounded upon good reason, gives mee satisfaction to differ from Fineux, who making no difference betweene the cases held the Husbands assent needles in both. Posito then that the wife of I. S. having debts due to her selfe, and being also Executrix to I. D. makes without her husbands assent, I. N. her executor, and dyeth, what shall wee now say? shall wee say, that as touching the goods, and credits, or things in action to her as executrix of I. D. pertaining this will stands good, and I. N. as her Executor may prove it contrary to her hus­ [...]ands will; and that as to the credits to her selfe in her owne right pertayning, the will is voyd, [Page 84] voyd, & thereof her husband may take admini­stration? Shall she dye both testate, and intestate with a will, and without a will? shall shee have both an executor, and administrator? why not?Note. to severall purposes aswell as where an executor is made onely for one particular thing or one place, the Testator may else­where dye intestate: and so where the execu­torship is divided as before is shewed, and one to whom part is committed will prove the will, but the other to whom other part of the exe­cutorship is committed will not take it upon him, here must needs bee a dying for part te­state, and for part intestate.

As for the second point, viz. wives or wo­men coverts being made executors, and so having the office of executorship put upon them against their husbands will,13. Ed. 1. Fitz. Exec. 119. there hath also beene diversity of opinions. In the time of King Edward 1. Brab. Justice saith shee may executor without her husband, and the admi­nistration shall bee delivered to her onely. And I thinke he meant that this might bee without the consent of her husband or whether hee would or not, for so is it said in the time of King Henry the seventh to bee the Law spiri­tuall, [...] Hen. 7. 15. b. and indeed in Courts spirituall no dif­ference is made betweene women married, and unmarried, for ought I can finde: there a wife sueth, and is sued alone without her husband; hee intermedleth not, nor is intermedled withall touching the things pertaining to his [Page 85] wife. But at the common law it is otherwise, and there as Bryan Chiefe Justice saith,2 H. 7. 15. a wife without the assent of her husband cannot be executor, he meaning thereby that the hus­band may oppose and hinder it: for such an one may be named executor in and by a Will without the knowledge of her husband: let us then see how after the death of the testator, the husband can hinder her proving of the will or intermedling to administer, since it may be a matter both of much trouble and danger to him, to have the executorship fasten upon his wife, and consequently upon himselfe. On the other side, it may be a benefit and advan­tage to the husband, and therefore we will al­so consider, whether the husband may (though his wife would refuse) assume the executor­ship and fasten it upon her. The testator there­fore being dead, and fame or common bruit carrying it to the Ordinary, that the wife of I. S. is made executrix, if she come not in gratis, or voluntarily to prove the Will; Proces or a citation is to be sent out of the Spirituall Court against her, to enforce her comming in to take on her the executorship. She comming may cleerely, as well as any other person (especial­ly if her husband concurre with her therein) refuse this office, trust and charge, so as if there be no other executor named, the Ordinary must commit the administration: If she should not come and appeare, she should be excom­municate as I take it, notwithstanding any al­legation [Page 86] or intimation by her husband of his unwillingnesse to have her take upon her the executorship. But suppose she doth come into Court and offers her selfe ready to take the executorship upon her, and on the other side her husband expresseth his disassent therunto, praying that she may not have the execution of the Will to her committed, what will then be done? This I confesse pertaines to ano­ther learning, and not to that of our profession: but forasmuch as I find that in the Courts spi­rituall a wife standes in the same plight and state as a woman sole, the husband not in­termedled with all in the affaires of the wife; Therfore do I conceive that in that Court, the husbands refusall wil not be of force to hinder the committing of the executorship to the wife not refusing, at least if there come not a prohi­bition to stay the Spirituall Courts such pro­ceeding: but whether a prohibition be in such a case to be granted or not, as I find no resolu­tion in my books, so wil I not take upon me to resolve. This stands cleere in the rules of the law of England, 33 H. 6. 31. 43. 39 Ed. 3. 1. that the wife is under the hus­bands power, and cannot contradict him in pleading and doing other acts even touching her own Freehold:27 H. 8. 24. nay she cannot take lands nor goods by gift or conveyance, without her husbands assent, as the law hath been, and for ought I know is taken. But if once the Will be proved, and the execution thereof committed to the wife, though against her husbands mind [Page 87] and consent, I think it will stand sirme, and the husband and wife being after sued cannot say that she was never executrix, and I doubt whe­ther the wife administring without the hus­bands privity and assent, although the will be not proved, do not conclude her husband as well as her selfe, from saying after in any suit against them, that she neither was executor, nor did ever administer as executor.18 H. 6. 4. The plea is that the femme did or did not admi­nister without speaking of the husband. Yet perhaps this administration by the wife against her husbands minde, will as against him be as a voide act, else cannot I see how Brians opinion before cited, viz. that the wife shall not be an executor, without or against her husbands mind, can be law. On the other side if the hus­band of a woman, named executor, would have his wife to take upon her the execution of the Will,33 H. 6. 31. The husband may administer and prove the will for his wife. and to prove the same, but she will not assent thereunto (wishing perhaps that gaine and benefit rather to some of her kindred by way of administration then to her owne hus­band by her executorship: as sometimes wives accord not well with their husbands) in this case I think the Court Spirituall will not fa­sten the executorship upon the wife against her will. But dato, that the husband though the Will be not proved, doth administer as in the wives right, but against her minde and will, shall she be now hereby bound and con­cluded, so as after she cannot decline or avoid the executorship: and surely I think that du­ring her husbands life, she stands concluded at [Page 88] the common law, for that there she shall not be, nor can be sued alone as executor, and then being sued with him she must joyne in plea with him, viz. that she neither was exe­cutor, nor administred as executor, and then this act of her husbands given in evidence, will as I take it, cause that the verdict be found a­gainst her,1. El. Dy. 166. b. there is cited 3 H. rot. 112. Nota per Bill. not so after her husbands death: then she may refuse, as the Lord Dyar saith, and citeth as resolved. These things I thought good to offer to consideration, and so leave them without resolution. Difference perhaps may be, where a woman so made executor ta­keth an husband after the testators death, be­fore either proving or refusing to prove the Will, and where she is made executor during the coverture, as there is in case of a discent of her land to the heire of a disseasor; for when there is upon her such a state of election, she marying before her resolution or determinati­on, doth upon the matter deliver it into the husbands hands: not so where it first findeth and falleth upon her in the state of coverture: if the husband were indebted to the Testator, this making of the wife executor is as I take it, a release in law, as well as if she were the debtor, but if after the testators death she do marry such a debtor, it is a devastation.

The third Point.
Touching the administration or execution of the Office of executor by a Femme covert and her husband.

WE will now come to admit the execu­tion of the will assumed by concurrent consent of husband and wife, and the will pro­ved with both their likeing in the wives name, and examine what acts the wife of her selfe is able to do, and what her husband without her.

It hath beene conceived by many of old, and by some of late, that if a Femme covert or ma­ried woman executrix release a debt of her testator, or give away the goods which she hath as executor,7 H. 4. 13. or deliver a legacie bequea­thed, it was firme and good, and on the other side, that her husbands gift or release was of no value,See 18 H. 6. 4. In det the plea shall bee that she hath fully administred & replic. that she hath assets, ne­ver mētioning the husband. for that the administration or execu­tion of the will is committed to the wife only, and some have gone so farre as to say that she may sue or be sued without her husband (in the Courts of Common Law, I meane, for in the Spirituall Court it is true the husband is not joyned with the wife in suit) but the law is doubtlesse in all those points contrary, as not only some opinion also was of old, viz. in the time of H. 7. but also hath beene in the late Queenes time resolved, for otherwise, if the wives gift or release should stand good, her act [Page 90] might exceedingly endamage her husband, and make his goods lyable to the creditors, the testators state being wasted by the gifts or re­leases of his wife. Wherefore it was held in the said late case, that unlesse due payment were made to such women covert executors, their releases or acquittances be void, and so also their gifts and grants: yea it was then held that the husband of the wife executrix,33 H. 6. 31. may give goods or make releases of debts at his pleasure. But doubtlesse by mariage, neither are the goods though personall which the wife hath as executor, devested out of her and set­led in her husband as her own goods are; nor if she dye, shall they acrue to the husband, if no alteration were of the property, but shall go to her executor or to the next of kin being administrator of her testator if she have no ex­ecutor, and so was it held in the first yeare of Queene Mary: Yea though for any other goods which the wife had in her owne right before marying, the husband alone without naming the wife may maintaine an action of trespasse; yet touching such goods as the wife hath as ex­ecutor the action must be brought in the names of the husband and wife to the end that the damages thereby recovered may accrue to her as executor in lieu of the goods.M. 31. El. in com. b. If the husband be to avow, it must be in the right of his wife ex­ecutor or ad­ministrator. So also must the replevin for those goods be in both their names. But although the husband be thus na­med with the wife,Manfilds case. yet principally is it the suit of the wife, and therefore in such actions or in [Page 91] debt by husband and wife, she being executor, if it come to triall by Jury, the husband being an alien,Doctor Juli [...] his case. yet shall he not have triall per medieta­tem linguae or alienigenarum, that is, by halfe ali­ens, as in other cases: Cases where an alien is party to a suite is to bee had. And whereto a wife made executor, power is given to sell land of the testators; shee may sell to her owne husband, as was resolved in the time of King Henry the seventh,10. H. 7. 20. where the Feoffees (it be­ing land setled in use) were committed to the Fleet, for that they would not execute an estate to the husband, according to the wives state. But of this I much marvell,Bro. Just. Cui in vita 15. Shee may sell to any other, but not to him. since the Law intends the wife so under the husbands command and subjection, that it holds not her disposition of land to him by will free, nor therefore of force, and how shall this then be conceived to be but a partiall sale; yet vo­lenti non sit injuria, and he that will put such power into the hands of a woman under co­verture, doth in a manner subject it voluntari­ly to the husbands will.Fenner Just. in ba. reg. Pas [...]. 37. Eliz. & 34. E. 3. Bro. Cui in vi­ta. 15. And it hath been held by some, that even an infants or femme co­verts conveyance in such case of necessitie should stand firme and unavoydable,No prejudice to them that it be good. because of the condition expresse or implied, that the state should bee void, if no such conveyance made.

Touching infants, and their making or being made executors.

BEing now to consider of disability by age, for want of yeares in persons making or being made executors: Let us first take view of the severall ages of men and women to se­verall purposes materiall in the lawes judge­ment 1 and respect. And first, touching a wo­man:35. H. 6. 41. b. Wangford in Henry the sixth his time shewes, and other books approve that she hath sixe severall ages, respected in and by the law. As first the age of seven yeares, for her father to have aid of his tenants to marry her. 2 Next nine years to deserve dower, that is, that in case she be of that age at the time of her hus­bands death, shee shall be endowed, but not if she be any thing under those yeares; the Law being Physically informed that a woman at those yeares may conceive a child, but not un­der them. But of somewhat different opinion was, as it seemes, the Parliament in the late Queens time,18. Eliz. cap. 7. when it was made felony to have unlawfull carnall knowledge of any woman child under the age of ten yeares, it being then conceived, as I thinke, that no such could con­sent. 3 The age of twelve yeares is a womans time for assenting or disassenting to marriage in more tender yeares had. For so it appeares by divers bookes, although Mr. Littleton have [Page 93] here no distinction between male and female. The age of fourteen years is a womans time to 4 be in wardship or not, so as if she be any thing above those years, at the time of her ancestors death, she escapeth wardship. The age of six­teene 5 yeares is her time of comming out of wardship, being once fallen under it, for al­though had she beene full fourteene, she had escaped it; yet not so being at the time of her ancestors death, her wardship lasteth till six­teen yeares, except the Lord shall sooner mar­ry her. And lastly, the full age of a woman 6 whereby she is inabled firmely and unavoida­bly to make grants or conveyances is one and twenty yeares, as well as for the male, before which time, be it that she being sole, make a feofment or other conveyance, or being mar­ried alien her land by Fine, and her husband of fu [...]l age joyne with her, yet is it infirme and a­voydable.

Now of the male, or man, the first age ma­teriall 1 and setledly resolved on, is twelve years, for at that time each male is at the Leet to sweare his fidelity to the King; this women doe not, and therefore are they never said to be outlawed, but to be waived, because they have not this admittance into the Law which males have. This hath been, as I think, the ground of that speech, That women are lawlesse creatures.

The second age of males is fourteen yeares,2 [Page 94] accounted by the Law, the age of discretion, especially materiall to two purposes, viz. First, that if one under that age commit an act a­mounting to felony, yet is he to stand free from the attainder and punishment incident to a fel­lon: Regularly it is thus, but non est regula quin fall it, one of much lesse yeares having attained ripenesse of discretion and discerning, shall incurre the like attainder as one of full age, as was resolved in the time of King Henry the se­venth,3. H. 7. f. 1. 6. touching an infant but of the age of nine yeares, who having killed another boy of like age with his knife, and then hiding the slaine boy, and excusing the blood found upon him, by saying that his nose had bled: It was held by the Judges that he was to be hanged as a fellon, his such non-age notwithstanding. The other point, touching which, this age of fourteen yeares is especially materiall, is tou­ching an heire of lands held by socage; for in case such heire be under that age, he is to be in ward to the next kin, but if he be of that age, he is not to be in ward at all, for that the law judgeth him to be of discretion at those years, and therefore a Guardian in Socage being in effect but a Bayliffe accountable, hee hath no need of such an one, other than such as himselfe shall chuse.

3 The third age in and touching males mate­riall is fifteen yeares; for every Lord of a Ma­nour; or one having Freeholders in Socage, or [Page 95] by Knights Service, when his eldest son com­meth to that age, viz. fifteen yeares, is to have of them ayd for the making of him a Knight, towards which every one holding by a whole Knights Fee is to pay twenty shillings, and so ratably for more, more; and lesse, lesse: and each holding twenty pound land in Socage, is to pay the like summe, and so ratably for more or lesse.

The fourth age of males, is the full age of 4 one and twenty years, which maketh him free from wardship, having lands held by Knight­service descended unto him: And also makes him able to alien lands or goods, makes firme his bond, statutes, recognizances, &c. for al­though at fourteene the law judge him of dis­cretion, yet doth it not hold him fully ripe till one and twenty.

The last age of males respected by the law,5 is seventy yeares,Oblitum. at which time Sheriffes are to forbeare to impanell them in Juries,Another of 60 to exempt frō being compel­led to serve by the stat. of la­bourers 23. E. 3. cap. 1. and in case they doe not, such old man may have a writ to the Sheriffe, grounded upon the statute for that purpose, made in the time of King Edward the first,W. 2. cap. 38. 13 Ed. 1. no. na. br. 165. [...] commanding such Sheriffe to for­beare the impanelling of him; and hee may have an action to recover damages upon that statute: This is called by most a writ of Do­tage, a word, perhaps, anciently taken in a good and favourable sense, Pro dote etatis, viz. a gift, privilege, or exemption allowed to age [Page 96] in favour thereof, and as a benefit. Having thus by way of ingredient or introduction ta­ken view of these severall ages, let us now see wherein and how age is materiall, touching them who are to make or to bee made execu­tors, and what age required thereabout. Master Perkins saith,Devises. f. 97. that one of foure yeares old may make a will, and consequently executors; and his reason is, because the executors being to account before the Ordinary,No good rea­son, for one may make an ill account; specially ha­ving a childes direction for his doings. it cannot be in­tended but that the goods shall be distributed for the good of his soule: He speakes as if he only made an executor by his will, but did not bequeath any thing, but left all to the execu­tors conscience and discretion, which is not usuall, though fesible, as before I have shewed, or said at least. But admit it were so, and no be­quest at all contained in the will, yet since at that age an infant hath no discretion to elect a fit person to distribute his goods, money, and other things; no nor to make continuation of an executorship to another, to whom perhaps the infant was executor: I cannot see that his will should be of any force, but if he be of the age of 14. yeares, being the age of discreti­on, in the judgement of law, then I should hold him able to make a will, although yet he be an infant till twenty one yeares, and can make no gift of land nor goods which shall be of force. And Babington chiefe Justice,9. H. 6. f. 6. to other purpose makes like distinction betweene an infant of [Page 97] such tender yeeres, and one come to the yeares of discretion. So also as before wee shewed, is it in the Case of fellony. And that way also sounds that which Hanck: 2. H. 4. 22. saies in Henry the fourth his time, viz. that an infant of 18. yeeres old may bee a disseisor; as implying that his yeeres may bee so tender,40 Ed. 3. 44. that as Candish saith of an infant in Edward the third his time, hee is not to bee intended able to know or dis­cerne betweene good, and evill, me thinkes therefore hee should bee at the least of the age of discretion, viz. 14. yeeres who should bee able to make a will, and consequently an Executor. And the custome for an infant of 15. yeeres old to bequeath by will hath as to mee it seemes,37. H. 6. 5. affinity with this opinion, though there the Case was of land in a borou [...]h de­visable by custome:11. H. 6. f. 40. 6. and that way reflecteth the Case in the time of King Henry the sixth, where it was said that an infant under 15. yeeres of age should not wage his Law, viz. take an oath to acquit himselfe of a debt or excuse his default in an action reall. And further reason of this opinion will arise out of the consideration of an infant made an Executor.

Now touching an infant made Executor how young soever hee bee, the making of him so is not voyd, but yet the execution of the will which is the performance of the office of Executor shall not bee committed to him till hee come to the age of 17. yeeres by the Law spirituall, and till then (for that hee is not [Page 98] able to doe the part of an Executor,) admini­stration is to bee committed to some other; yet if it bee a woman infant who is so made Executrix,Co. lib. 5. f. 29. P. in Case shee bee married to a man of 17 yeeres old or more, now is it as if shee were of that age, and her husband shall have the Execution of the will, and if administra­tion were before committed during the mino­rity of the woman,M. 41. &. 42. Eliz. it shall now cease, as is said in Princes Case. Yet I doe a little marvaile at these opinions, considering that these things are managed in the spirituall court, and by that Law; and it intermedles not with the husband, in the wives case; now by that Law, and not our common law, comes in this limit of 17. yeers. And I have seene it otherwise reported in, and touching this last point.

Further touching infants Executors, and under that age of 17. yeeres this is to bee no­ted, viz. that such an one is not able as an Executor to assent to a legacy,Co. lib. 5. fo. 29. But pay­ment is to bee made to the Exec. & not to the adm. M. 15. & 16. El. in com. ba. rep 67. Co lib. 5. fo. 29. so as it may by virtue thereof settle in the legatee. Also if ad­ministration bee during such minority commit­ted with speciall words of restraint or limita­tion, viz. that it is done to the use or profit of the infant Executor, then no sale of lease or goods or assent to legacy, by such administrator will bind or prejudice the infant Executor; But otherwise perhaps if the administration du­ring the minority bee committed generally.Co. lib. 6. fo. 671. And if the Testator himselfe, making an in­fant Executor doe also appoint another to bee [Page 99] his Executor during his nonage, expressing it to bee onely for the benefit, and behoofe of the infant executor, I doubt whether this tem­porary executor stand any whit restrayned frō what pertaines to the power of an absolute executor, for there may be perhaps difference between him to whom the owner of the goods commits the government of them, though but for a time, and in speciall manner, and an administrator so specially made by the ordina­ry, another being presently by the will of the owner or Testator to have the administration, in whom for a time legall defect is found. But now let us passe over this age of 17. and con­sider of the infant betweene that time of his being admitted to take upon him the execu­torship, and his accomplishment of his full age of 21. First, then suppose that hee doth release a debt due to his Testator, whether shall this bee good to bind him, and to dis­charge the debtor aswell as if the executor had bin of full age, hee now having proved the will, and being by the Law spirituall approved an able executor. And this point comming in que­stion in Russells Case,H. 26. Eliz. in the late Queenes time, consideration was had both of divers good reasons for enabling of this release, as that an executor represents the person of his Testator, and in his right, and power, doth these acts, and not in his owne, and therefore his infancy which is a state or condition of his owne na­turall person, shall no more disable him then [Page 100] it doth the King,16. H. 6. ret 45. a Mayor or other head of a Corporation.21. Ed. 4. 13. 24. Also divers Bookes were found to runne that way as well in the case of an in­fant as of a Femme Covert. But upon great deliberation in the Kings Bench, and upon conference had with the Lord Anderson, Man­wood, and other justices, it was resolved, and adjudged that the release of an infant executor without payment of the debt or duty would not bind or barre him,Co. lib. 5. fo. 27. first for that if it should it would be a wasting or devasting of the goods of his Testator, and so would charge his owne goods. Secondly, It would bee a wrong which an infant could not doe by his release. Third­ly, It was no pursuit nor performance of the office or duty of an executor, but the contrary: And upon this judgement a writ of error was brought in the Exchequer Chamber, where it was agreed by all, that the release was not effectu­all nor binding, so as this point now had the resolution of all the Judges of England. But it was agreed, that if payment or satisfaction had beene made, then the infant executor might have made a good acquittance, and discharge, & indeed payment it self if proved, brings dis­charge enough, except in the case of a single Bill; Note that the principall case adjudged was not of a release of any debt or duty by spe­cialty, but of trespasse in conversion of goods found or taken in the Testators life time. But Po [...]ito, that this infant had assented to a legacy, whether will this binde him or not? for in the [Page 101] said Case of Russell, it is said that all things which an infant doth according to the office, and duty of an Executor, will stand firme; now it is part of his office to pay, and execute Le­gacies. Yet since this act amounts to a vasta­tion or wasting of the Testators goods aswell as the other, in case there remaine not goods sufficient for payment of the debts, and con­sequently here aswell as in the other case, the infants owne goods would become lyable to his Testator debts; I doubt, and incline, that it is not nor can stand effectuall, for except in the other wee admit a want or possibility of want of assets or goods, the release could neither hurt the infant himselfe, nor doe wrong to any other, and that admitted, this case is of like prejudice; yet if this asset should bee voyd so also would bee his payment of Legacies, and how then were hee an able Executor at the age of 17. yes to sue, and to bee sued for debts, and Legacies, and if upon suit it cannot bee shewed that debts will take up all or disable the payment, then happily hee may bee forced to pay; Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse, or conditionally, viz. if there bee besides goods sufficient, &c. or that else the nonaged Executor may have an action of ac­compt for the money by him payed to the Le­gatee, and also avoyd his assent where that only needfull. But doubtlesse neither the assent of such Executor before his age of 17. nor any [Page 102] payment of a debt to him could bee good, al­though such acts to or by another Executor, before the proving of the will would stand firme, and good: for this infant wants not onely proving, but also ability to prove his Testators will, yea the will stands suspended, and the Testator as it were intestate, whilst the administration stands in force, so as during that time nothing can bee done by any as exe­cutor, and therefore there is great difference betweene the cases. What if payment of a Legacy bee made to an infant, can hee make a sufficient acquittance; This I confesse is be­sides the point in hand, yet because it concerns infants, and Executors (though not infant Executors) it is not amisse here to cast some thoughts, and words upon the point, for that it many times perplexeth both Executors, and Legatees. First, therefore in case the Execu­tor bee of the yeares of discretion, viz. 14. I hold it cleare that any payment to him made will stand good, for that the Law at that age holds him able to governe, and manage his owne Lands held in socage, and consequently to receave the rents thereof, wherefore whe­ther hee who makes such payment have any acquittance or not; if hee have proofe of the payment, hee is well enough acquitted from any second payment, and if without payment hee get an acquittance, it will not suffice, the infancy of him who makes the acquittance considered. Besides if the acquittance bee as [Page 103] most usually they are,Notes of [...] called ac­quittances. but signed onely with the name of the maker, and not sealed, it is onely an evidence or proofe of payment, and no pledable acquittance, because no deed, so as it nothing differs from proofe by witnesses, save that it is not mortall as they. But now if the infant bee under the yeeres of discretion, what shall wee say to a payment to him special­ly, if hee bee but three, or foure yeares old or thereabout: heere I thinke caution is to bee used by the executor generally, and the surest way is, if hee feare to keepe it in any respects, to pay it into the Court, where it is recover­able, viz. where the will was proved; yet the case so may be, as that this payment may not bee at all safe for the Executor. As put the case that hee entred into bond or statute to pay all Legacies by such a day, to the severall Legatees, heere I thinke the payment into the Court spirituall sufficeth not,Quae [...]. for that must make the receit to be, with some charge, which is in some kinde an abatement; there I thinke there­fore legally to secure the Executor, the pay­ment must bee to or in the presence of the gar­dian because of noriture, viz. him or her who hath (though not as gardian in respect of lands) the custody or education of the infant: for o­therwise to pay it into the hands of such a tender infant separate from any governor, or gardian, were to expose it to losse, both for that hee is not able to count the summe, and for that hee yet not being come to discerning yeeres [Page 104] were like with Esops Cocke, to part with pearles or coyne for plumes and trifles of no valew. But in case no bond nor other collaterall pe­nalty lie upon the Executor, or in Case the Bond or Statute bee onely to performe the will ge­nerally which nothing alters the course of pay­ment, which by the will the Law laies upon Executors, then is not the Executor put to any such payment, nor need pay without demand, and acquittance, as in case of payment, upon a single Bill, or of a rente secke where no distresse can bee taken, nor other penalty in­curred: yet in that Case if demand bee, and acquittance ready to bee given, let the Exe­cutor take heede, in Case hee bee bound to per­formance, that hee stand not upon the invali­dity of the acquittance in respect of nonage, for as I have said, proof by witnesses may supply a nullity of acquittance, and much more the weaknes or imbecillity, payment according to the testators appointment being the matter wch acquitteth the payer, and this the Executor may have testified under the hands of divers witnesses expressing circumstances, so as all dy­ing may continue safely from second payment as well as an acquittance, the witnesses where­unto are subject to mortality, as well as the o­ther. But herein Courts of equity doe often interpose helpfully for them who seeke not e­vasion from payment, but only security in pay­ing. And of infant executors, and by occasion thereof, of infancy in Legatorees, or Legatees, thus much.

Of Legacies.

ALthough these be not recoverable at and by the Common Law, but most natural­ly at and by the Law Ecclesiasticall, yet by suits in Courts of Equity, as the Chancery and Court of Requests, they are often obtained, and of many things touching them the Com­mon Law taketh notice, and hath manifold oc­casions so to do: we will therefore consider thereabout these parts or points, some where­of have beene in part before touched upon o­ther occasions.

Whether any legacy in certaine & lying in 1 prender, may be taken, or had, without the executors assent by the legatee, or him to whom it is be queathed?

When an executor can, or safely may pay,2 deliver, or assent to a legacy?

Whether one executor alone may do it, and 3 what if the executor be an infant or woman covert?

What shall amount to an assent of the exe­cutor,4 and What to a disassent or disablement of assent?

How a lease or chattell reall may be given 5 to one for a time, with remainder to another, how not.

Where an assent to the first or one part of 6 the bequest shall imply or amount to an assent for the residue.

[Page 106] 7 Of the manner of assents and therein of as­sents conditionall.

8 What manner of interest he in the remain­der of a lease after the death of another hath during the life of that other, and whether he may dispose of it during that time, and how?

9 Whether this remainder can be defeated by any act of the devisee for life, or by the death of him in remainder first?

10 By what acts or accidents a legacy may bee forfeited or lost, and therein of revocation, death before, &c.

11 Whether the executors assent shall have re­lation to the testators death, and shall make good a graunt before made by the legatee.If the executor give it to ano­ther, the lege­tee hath no remedy at the Common Law per Prisot. 37 H. 6. 30.

As for the first, we have before shewed the assent of the executor to be necessary before any legacy can be had, for that debts are first to be paid, and that the executor is to look to at his perill. But hereto adde a little out of M. Swinborne a learned Civilian, who saith, that in case any goods be in the hands or cu­stody of J. S. and the owner doth bequeath them to him, then may he keepe or retaine them against the will of the executor, so as there be other sufficient goods in the hands of the executor for payment of all debts: but though thus as it seemes would it stand in the Ecclesiasticall Law, yet for that no property is transferred to the legatee without the exe­cutors assent, therefore doubtlesse the execu­tor may at the Common law recover the thing [Page 107] with-held, or damages to the value against the legatee detaining it. Another case there is, wherein as the learned Civilian saith, the le­gatee may take the thing to him bequeathed lying in prender, viz. Horse, other beast or peece of Plate, or other like thing knowne and in being, and that is where the testator doth expresly so appoint by his will. But herein doubtlesse the Common law, at and by the which debts are recoverable against executors will oppose the law Spirituall, for else by such appointment the testator might cause that all his goods should be taken by legatees, and that none should remaine to pay debts. Yet if there be other goods besides sufficient for payment of debts, then indeed I see not how the execu­tor can hinder such taking without violating his oath taken for performance of the will. If any say that it is also a breach of oath in the o­ther case, I say he observeth not that there that clause in the will being against the law is void, and consequently there is a nullity upon it, and it is as if no such thing were in the will, and so the oath extends not to it. And as a chattell shall not be transferred to a stranger without the executors assent; so if the devisee be to the executor himselfe, till he elect to take as lega­tee, it shall be in him as executor, as appeares by the straine and argument of two cases in Plowd. Comment. and more lately in the Kings Bench, the point being divers dayes argued was at last so resolved by three Judges against [Page 108] one:Wel [...]den and Elkington. and the reason of Coke at the Barre was very good,Paramour and Yardley. for here the executor sustaines two persons, viz. an executor, and legatee, and so all one,Po [...]tman and Simmes case. as where the bequest is to another, for Quando duo jura concurrunt inuna persona, Trin. 37. Eliz. aequunt est ac si essent in diversis. All but Gaw­dy so agreed.

As for the second point, it may have these two parts: 1. When the executor is able to give such assent to a legacy. And 2. when he may do it with safety.21 Eliz. D. 367 As for the first, he is a­ble before probat of the will to assent unto the execution of a legacy, as elsewhere is shewed, and that although he be not of full age of 21 yeares; but if he be under 17 yeares, so as he is not able to take upon him the office of an exe­cutor, and therefore administration is during that time to be committed to some other;Co. lib. 3. fo. 29 Here his assent is not of force or effectuall, as wee find in Princes case to have been held in the case of Pigot and Gascoine. As for the second part, till all debts be payd, the executor may not safely consent that the legatee enter into the lease or chattell devised, no more then he may pay money bequeathed, if there be not sufficient also to pay all debts. Of these things more is said elsewhere. Yet because the reader or he that desires direction in these points will look for them under this title, I thought not good here to be altogether silent touching them.

As for the third point, viz. Whether the as­sent of one executor where there be many, be [Page 109] sufficient,6 H. 7. 5. If the bequest be to one of the exe­cutors, he may take it without assent of his compan. yet if a det, his com­pan. may re­lease it. 48 E. 3. 14, 15. I see not how to doubt, since any one executor may give away any goods of the testators, or release any debts due to him, ther­fore much more assent, which is no more or greater work in effect then an atturnment of one lessee upon a grant of a reversion. And if there want to pay debts, he only who assented shall answer for it of his owne goods, and not his companions.So held where but one of the executors du­ring nonage as­sented, in the case of Rheto­rick and Chap­pel. H. 9. Jaco­bi. Ror. 895. in ba. reg. C. But if this executor be either under the age of 17 yeares, or under cover­ture, viz. a woman maried, such is not able to give a good assent to binde the others, no nor themselves, for then thereby the Infant might draw a debt upon himselfe, and the wife upon her husband, by assenting to or paying of a le­gacy, there not being sufficient goods to pay all debts. But the husbands assent is sufficient where the wife is executor, for his acts whom she hath chosen to be her head, may prejudice as well her as himselfe; yea though she were within age, yet he being of full age, his assent will stand good. But if he or another executor in his own right be above 17 yeares of age and under 21, I doubt whether now his assent will be sufficient, at least except the case be put that there be assets sufficient, which perhaps there may be materiall, though not in the other. See more hereof after in the title of women covert, and Infants executors.

As to the fourth point, first there may be an assent & election implyed, as well as expresse, for if in the devise or bequest the legatee [Page 110] be appointed to do some act as in respect of the legacy,See Co. lib. In­tr. 150. the exe­cutor being de­visee for life said, the other should have it after her death and he entred and tooke ad­min. she dying intestate, yet held Assets in him. and the excecutor doth accept the performance thereof, this amounteth to an as­sent. So if the devise be to an executor for the education of some children which he doth ac­cordingly educate, this makes an election to have the thing by way of legacy, and not as ex­ecutor, as appeares by the case of Paramoor and Yardly, Plowd. 543. So if an horse be be­queathed, and one offering to buy him of the executor himselfe, he directeth him to go and buy the horse of the legatee;This M. 19 H. 7. Rot. 318. See lib. Intr. 321. or if the execu­tor himselfe offer money to the legatee for the horse,One gave the third part of his goods to A with whō the exec. accoun­ted for the a­mount, and Asued for that summe in det, but no judge­ment upon de­murrer. this implyeth an assent that it should be the legatees by the will, and so was it held in the case between Low and Carter, where the de­visee of a terme did grant it to the executor, and this acceptance of a grant from him was held to imply the executors assent that it should be his to grant. But I see not well how that should be law, which in the latter part of the Lo. Dyer is found,Tr. 37 Eliz. in ba. reg. viz. where a terme was devised to I. S. and he was made executor, and after the death of the testator entred and oc­cupied the lands a whole yeare without pro­ving the Will,Wherebe quests to exec. him­selfe. that this was an election to have it as devisee and not as executor. For first he had good right to the terme as executor be­fore probat, and so might clearly in that right have taken the profits, although it had not bin devised or bequeathed to him, and that before any will proved. Secondly, he could not by [Page 111] right have it as legatee without assent of him­self or some other as executor.Tr. 37 Eliz. If he by will be­queath it to I. S. this is an ele­ction to have it as legatee. Therefore this general accepation can determine no election, as elsewhere is held. As for disassent or dis­ablement to assent. As if the executor do once declare his assent that the legatee shall have his legacy, he may then enter into it or take it notwithstanding the executors countermand or revocation of his assent after. So on the o­ther side, I think if he do fully and expresly deny that the legacy shall take effect, he cannot after make a good assent thereunto, for that election once made must stand peremptory, be it refusall to assent, or assent. Yet quae. of this, for that the refusall to assent may be checked by sentence or decree, in the Spiritual Court or Court of Equity, and so an assent be inforced. But if the power of assenting be legally lost by the meanes aforesaid, viz. disabled, I see not how any legall interest can be transferred by that compelled assent,So if the exec. take a new leas his assent after is void. Tr. 37. Eliz. in Car­ters case. howsoever decreed. And what is said of a legacy bequeathed to a­nother, the same may be understood in case where the bequest is to the executor himselfe, and he makes his election to have it as legatee,19 Eliz. D. 359 or as executor. But if where an Horse is be­queathed to A, the executor after the testators death doth ride the horse or use him in the Coach, or in the Plough; I do not take this to be any such disagreement to the execution of the legacy, as that the executor cannot after as­sent to the legatees having thereof, no more [Page 112] (though it be somewhat more) then where a drinking-cup is bequeathed, and the executor after the testators death doth use it to drinke in, nay, if a lease of land be bequeathed to A, and the executor continueth the depasturing of the testators therein, yet is not this any disa­greement to the execution of the legacie, but if this lease-land were let out by the testator from yeare to yeare, and the executor dischar­geth the tenant, and taketh it into his hands at the yeares end, this I conceive to be a dis-assent to the legacie, and so also perhaps may his ta­king or distraining for any rent thereupon due after the testators death; yet am I not resolute that the dis-assent is so peremptory and un­changeable, as the assent, remembring the case in King Henry the eight his time,14. H. 8. 23. where a terme being granted by a lessee conditionally, so as the assent of the lessor could be had by such a day, though the lessors assent were at one time denied, yet 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,Dy. 359. After choice once made, no va­riation. 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 [Page 113] 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,Plow. Com. 520. & 542. 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 [Page 114] 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,Both Alexan­der and Ralfe were execu­tors; but that makes no dif­ference. 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 [Page 115] 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 [Page 116] intent, viz. that after Alexanders death it should goe first to his Executors, and assignees, so long as issue male of his body doth continue, and for want of such issue, then to Ralfe his Executors and assignees, so long as his issue male should last, and therefore in this case the issue male of Alex. failing, the executor of Ralfe, whose issue male fayleth not, should injoy the terme, and so judgement ought to be given for the plaintife, being lessee of that Executor: on the other side it was said by the defenda [...]ts counsell, that this Case differeth much from the other Case, where the terme or Land held by Lease, is given but for life to the first with remainder to another; which Case as having beene often resolved, was clearely admitted to bee good law; for in that case the intent of the Testator might, and did take effect. But in this case if the land should goe to the Executors, and assignees of Ralfe Hammon, it must goe against the intent of the Testator, whose mind, and wil was, as it appeares by his word, that it should goe onely to the issue male, of one sonne after another, and not to any Executors. Now then since this intent was so contrary to the rules of Law that it could not take effect, therefore it must be voyd, and so all the words of heires Male standing voyd, the Will is to be construed as a sole, and absolute gift, and bequeast to the said Alex. & consequently the terme must goe to his Executors, and assignees. And for this point resemblance was made to a Case resolved in the [Page 117] Kings-Bench,Windsmore & Holford, vel Holbord in. 28 & 29. Elizab. argued; and Tr. 29. Eliz. adjudg [...]. 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 nothing it was resolved that A. should not have i [...] for their lives, but for his owne onely. This Case was said to come very close in reason to the Case in question; for as heere the intent of the Lease was that B. and C. should bee estated for their lives, and since that could not bee, therefore the naming of them should bee ut­terly voyd, and as if they had not at all beene named; and their lives shall not stand as a mea­sure for the estate of A. So in thother Case the intent of the will, being that the Lease or Land leased should goe to the heires Males of the body; first, of Alexander, and after of Raulphe; since this cannot bee, therefore the words, and name of heires males should stand for a meere blancke and cipher, and not to measure out any state to the said Alex. and Ra. and their Executors, and assignes. Also it was said on the defendants part that an estate for life in the judgement of Law is of so short, and uncertaine continuance, that if A. make a Lease to B. for his life, and after makes a Lease of the same Land to C. for yeeres now, shall not this latter Lease bee voyd absolutely, for any part of the terme, but shall stand in expectance of the death of B. and as soone as hee dyeth, shall take effect immediately, whereas if the Lease to B. had been for ten yeeres or any like terme, then the Lease to C. should have beene voyd for [Page 118] 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) [Page 119] a fe [...] simple cannot afford a remainder to bee drawne out of it after such a gift to one, and his heires during the continuance of an e­state tayle, or of the measure thereof; much lesse can a terme yield such large thongs to bee cut out of it, as a remainder after an e­state to one so long as hee shall have heires of his body, or heires Males, which is all one. And in this case the remainder was held voyd by Baldwin, 28 H. 8. Dy. fo. 7. 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 [Page 120] 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 Mr. Baron Bromley, Mr. 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, [Page 121] 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,Ploud. 545. 6. whether this shall enure to B. also since without the Executors assent.Co. lib. 10. f. 47 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 [Page 122] 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 Hammo [...]ds Case, that the state li­mitted to Ral [...]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 thone 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 [Page 123] 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;Plowd. Com. 521. In Bret & Rigdens case. yet I think the assent that B should have the land, doth imply the assent that A should have the rent.So of common or other profit. 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 [Page 106] only of assents conditionall, now to this purpose we will cast our eyes upon two sorts of conditions, viz. precedent and subsequent. As for [...]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 [Page 111] 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,99 Eliz. Fulses case. 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;Lampets case. Co. l. 10. fo. 48. 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 [Page 126] 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 in reversion or remainder having the freehold or inheritance, should dissolve or destroy this terme residue after the death of the divisee for life, so as there the freehold should be discharged there­of. But Quae. for I have not knowne this in question. As for the other point of Fulses case, it was in the said later case of Lampett confir­med and admitted for good law, viz. that this possibility of remainder could not be aliened nor conveyed to a stranger.

Now we are come to the ninth point,9 Point. viz. to examine whether any act of the devisee for life can frustrate or defeate him in the remain­der of the terme, and whether by the act of God, viz. the death of him in the remainder before the first devisee for life shall defeat it. As to the first, it hath divers times been resol­ved,Plowd. 520. Wel [...]den and Elkington, 10. El. D. 277, 19 Eliz, D. 359. Cont. [...] El. D. 253. & 33 H. 8. Bro. chatelx. 23. that no grant made by the first man cut off or defeat the second, though formerly it were held otherwise; but according to the la­ter resolution was it also held or admitted by all in the said case of Hamo [...]d, where was such a grant. And as this cannot be done by direct grant or alienation, no more can it by an indi­rect, or implyed, as by taking of a new lease, which is a surrender in law of the old lease, no more then by an expresse surrender. Nor [Page 127] doubtlesse by outlawry, whereby the terme of the first divisee is setled in the Crowne. But if we put the case further of waste committed by the tenant for life, or breach of condition by not paiment of the rent or otherwise, these for the whole in the later case, and for the part wasted in the former, doe so destroy the lease, and put the reversioner in Statu quo prius, as that all remainders must needs faile; so of a feoffement or other like forfeiture by fine. As for the death of him in remainder, it was ur­ged in the case of Hamond, that since it was but a meere possibility, if it could not take effect, and become an estate in the life of him to whom it was limitted, it could not settle in his executor; and to that purpose were cited the case of the Rector of Chedington, and more expresly as resolved in the point, the case of Price and Atmore. Weleden & Elk. ubi supra. But there the point was ne­ver que [...]tioned, though such death was there. But▪ the Court resolved (and found former resolutions in other Courts that way) that the death of him in remainder did not hinder, but that it may settle as well in his executors upon the death of the devisee, as it should have done in himselfe, if he had over­lived the first divisee for life. If the lessor enter and levie a fine, and the divisee for life enters not, nor claimes in five years, he in the remain­der may enter, as having a right futurely ac­crued.

In the last place wee intermedled only with Leases bequeathed,10. Point. wherein yet is to be under­stood, that what thereof is spoken, is to be ex­tended [Page 128] to, and understood of all other chattels reall, as wardship of body and lands, estates by extent upon statutes or judgements, termes o­therwise than by lease, in faires, markets, rents, annuities, commons, advowsons, and other profits; yea, one single next avoidance of a Church. Now we come to consider of bequests personall, principally,Of forf [...]i [...]ure, revocation and other losse of lega [...]ie. if not only, viz. how such may be forfeited, lost, or revoked. First then, we will consider of the acts of the legatee; se­condly, of the acts of God; thirdly of the acts of the testator. The legatee, as from the Civi­lians I learne, may forfeit his legacie by his mis-cariage towards the will:Swinb. de te­stam. 352, 353. Except as tutor or guardian he accuse it. as if hee use meanes to have it concealed and kept from be­ing knowne, and consequently proved. So if he accuse it of falsity. So againe, if he deface or destroy the will. Also if being by the will appointed to be tutor or educator of a child, he refuseth so to be; so saith Master Swinborne: but Silvester Prierius seemes to me opposite in that where he saith,Sum. Silv. 284. Si legatum fuerit aliquid ea conditione ut facias aliquid, tale legatum non est conditionale, sed modale; so as he takes away the force of a condition from words conditionall, whereas the other without words conditio­nall raiseth a condition implied. Lastly, if the legatee presume too farre upon the strength of of the bequest to him, so as he taketh the thing bequeathed without the consent of the execu­tor; thus also doth he forfait his legacie, saith Master Swinborne, De testam. 25 [...]. unlesse the testator did will [Page 129] and appoint he should so doe. The falling into enmity with the testator, will be considered of more fitly, as I take it, among the acts of the te­stator. In the next place let us see what acts of shall God cause a legacy not to take effect, first thus: If the legatee die before the testator, this legacie is lost, and his executor shall not have it: So also saith Master Swinborne, if it be appointed to bee paid after the death of the executor, and the legatee dieth before the exe­cutor,De testam. 255 Vide Bro. De­vise 27. & 45. th [...]re were di­vers dayes of payment, and the devisee dyed before the last; his exe­cutor shall have it. 14. vel 24. H. 8. 36. H. 8. & 3 El. Dy. 59. See this difference. it is lost; and so also if he dye before the condition performed, saith he; Let us come now to time of payment, and death before it. If there bee a day certaine limitted for pay­ment, and the legatee die before that day, his executor shall have the legacie; contrariwise, if the paiment were limitted to be made when the legatee should be married: but if it were only expressed to be towards the marriage of the legatee, and shee die before marriage, her executors shall have it, saith Swinborne. Now put the case that a legacie is bequeathed to B to be payed when he shall be five and twenty yeares old, and B dyeth before that age, it shall now be paid to the executor, and that present­ly without staying till B should have been of that age,Sum. Silv. 283. saith Prier. Nay, saith Swinborne, if the words of the will be so,According hereto; vide Dy. ubi supra, per majorem opinionem Ju­sticiat. viz. when he shall come to such an age, then if he die before, his executors shall not have it at all, but if the be­quest be generall; and further it is added in the will that the testator would have that legacie [Page 130] paid the legatee at such an age there though he die before such age, yet his executors shall have the summe bequeathed. The difference may seeme very nice, yet happily it wants not some probable colour of reason. Now lastly, let us come to the testators own act,Acts of the te­stator. who clear­ly hath power to revoke or countermand any legacie, though he revoke not the rest of the will; and here first of revocation presumed. If there fall out Graves inimicitiae inter legantem & legatarium, Sum. Silic. 285. legatum caducum efficitur, saith the Summist; Sed non propter leves, saith he, & si graves si tamen redeant ad amicitiam, reintegra­tur legatum, that is, by grievous enmity after a­rising, and never reconciled between the testa­tor and legatee, the legacie is dissolved, other­wise of a light breach, or falling out, though it continue untill the death of the testator. This I conceived to be rather fit for this place, as an act of the testator, then to be reckoned or re­gistred among the acts or forfeitures of the le­gatee, for that it is not by the Summist made materiall, or any point of difference, whether the legatee gave just cause of offence, or that the testator unjustly conceived displeasure, and so grew into causelesse enmity. Therefore al­so doe I hold it of the nature of a revocation implied or presumed, for that although no re­vocation be made, yet since the testator hath ceased to beare good will to the legatee, hee cannot be intended to will him good, nor con­sequently to be of the same minde, touching [Page 131] the benef [...]t [...]ing of him, as he was when he [...]ade his will: yet here againe it is worth the con [...] ­deration whether the circumstance following may not make a difference in the case thus; that where the testator▪ dieth shortly after the breach and enmity growen, and before hee come to the place where his will is, or at least to opportunity of perusing and reforming the same: There this very alteration of affection should make an alteration in the will, and a re­vocation of the amicable bequest. But where he living a good space after, and comming to the place where his will was, and specially if he doe againe peruse it, and yet doth not crosse nor expunge that bequest, here it may be pre­sumed that either his enmity ceased, or that so farre as to continue this bequest, the charity or other motives inducing him to make it, stood unvanquished and not extinguished by this breach of former amity. For as the continu­ance of time and opportunity after the making of a verball or nuncupative will, without redu­cing it to writing, and causing it to be attested by witnesses, though the testator live divers years after, doth strongly argue his intent not to continue, that what was done in an extremi­ty should stand as his will: so on the contrary, the permitting of a bequest expressed in a writ­ten will, to continue without any crossing, blot­ting, or defacing, may argue against contrary presumption, the testators mind, that it should continue as part of his will. But now let us con­sider [Page 132] of more expresse revocation, and to that purpose will I relate a late decree in the Chan­cery, made by the Lord Keeper, according to the opinion of the Master of the Rolls, three Judges, and two Doctors, Masters of the Court; Betweene Robert Eyre and William Eyre com­plainants, and Hester late wife of Christopher Eyre their brother, and now wife of Sir Francis Wortley Defendant; Thus was the case. The said Christopher Eyre, 15. Jacobi, by his last will and testament giveth and bequeatheth to the said Robert Eyre, his brother, an hundred pounds, and to the said William his brother a thousand pounds, and gives to the said Hester his wife all the residue of his estate, and makes and ordaines the said Hester his sole and only executrix, saving for the performance of his will ordaines Robert Eyre and William Eyre, his said brothers, whom hee intreats to joyne as executors in trust with his wife, for the better performance of this his last will. Afterwards, 5. Jan. 1624. being sick of the sicknesse where­of he died, he was moved by Master Damport, and Master Stone, to settle his estate; to which motion he yeelded, and Master Stone, and Ma­ster Damport did demand of the said Christo­pher, what friend hee thought fittest to be his executor, and to whom he would commit the care of discharging his funeralls, and perfor­ming his will, whether hee trusted any person more than his wife, to be his executor? To whom he answered, That his wife was the fit­test [Page 133] person for that purpose, and therefore should bee his sole Executrix, and then the Testator was moved by M. Stone to give, and bequeath legacies to his father, to his brethren, and to his kindred, whereunto hee answered hee would give or leave them nothing, and being further put in mind to remember his friends and others, gave and bequeathed to Lionell Atwood his Godchild, 20 or 30s. and be­ing thereupon moved by his wife to give his said God-sonne more, or a greater legacy, or the like in effect; said, thou knowest not what thou dost, doe not wrong thy selfe, 20s. or 30. Shilling [...] is money in a poore bodies purse, or the like in effect, and the rest, he [...]left them to his wives discretion or disposition, and the said te­stator did speake the words aforsaid, or the like in effect. Animo testandi & ultimā volu [...]tat, decla­randi, as the witnesses then present did cōceive.

This will was proved by the oath of the said Hester, and this Codicell being pleaded as a re­vocation of the said bequests, The said master of the Rolles,Ord. 27. Iun. a. 2. Caroli regis. Judges, and Doctors were by the Lord Keeper, and the order of the Court desired to reduce the matter upon the will, and Codicell into a case, & to c [...]rtify their opinions, whether the said Codicel were a revocation of the legacies given to the plaintifes or not. And they after coūsell heard at severall times, viz. both cō ­mon lawyers, & civillians, & many houres spent in conference together did finally resolve with one unanimous consent, That the legacies to [Page 134] the plaintifes given were not by the said [...] revoked, and so certified under their hands, upon reading whereof 25. Novembr. decree being resolved to bee made if cause were not shewed to the contrary. 27. Novembr. on which day the defendants counsell before Lord Keeper in the presence of the master of the Rolles, and the said three Judges, and Sir Iohn Heyward, alledging what they could in stay of the said degree, It was by a generall concur­rance of opinion decreed, that the legacies gi­ven to the said plaintifes, should bee to them payd on our Lady even with 20. Nobles in the hundred for the detaynment thereof.

This case I thought fit to relate somewhat at large, because it pitcheth upon the point of revocation without plaine, full, and expresse termes. And surely as willes are to bee made out of disposing memories, and understand­ings, so also with deliberate, and advised judg­ments, and therefore by like reason not to bee countermanded or revoked by sicke, or slight expressions. And this seemes to me very a­greeable with the rule, and reason of the com­mon Law. For as reason it selfe doth dictate that Nihil ta [...] consentaneum est aequitati naturali, qua [...] [...] quodque dissolvi eodem modo quo conficitur; So hath the common Law of England, in my understanding resolved▪ as for the purpose, if the King present a clarke to a Church, and hee is thereupon admitted, and instituted there­unto: Now yet before induction may this be [Page 135] revoked as a will may. Yet if the King shall after, and before induction present another man to this Church without an expresse repeale or countermand of the former presentation, it shall not hereby bee revoked. So if lands were conveyed to certaine uses,To helpe this was the Stat. made 27. Eliz. cap [...]. with a clause or power of revocation; the sale of the same to another did not revoke the former. But if a state were merely at will, then the conveyance to another by the common Law, amounted to a revocation. Therefore was the Statute made tempore Henrici 8. to redresse this,6. H. 8. cap. 9. viz. that where the King had granted lands, or other things to one during his pleasure, this should not bee revoked by a grant to another without recitall of the former, and decla­ration that the King had determined his plea­sure.

Being now to consider of relation in the Exe­cutors assent, it is meete that since these discour­ses are principally intended, for those who are not grounded Students in, or professors of the Law, that wee shew what wee meane by re­lation, or what it is in Law. Thus therefore bee it conceaved; that relation is a kinde of fiction in Law, making a thing done at one time to bee accepted, and repuld, or to have its o­peration as if it had beene done at another time past. As for the purpose. A doth bargaine, and sell freehold lands to B. in August by inden­ [...]ure which is not inrolled untill October follow­ing, yet this hath such relation to the date of [Page 136] the indenture, that if A. after that, and before the inrolment become bound in a Statute, or granted a rent charg, or made a lease for yeeres, or tooke a wife, or committed felony, yet shall none of these bee of any force to charge or prejudice the state of B. for that the Law ad­judgeth him now owner by relation as from the time of the date: yea if a servant depart­ing in August for some great breach with his Ma­ster do kill his master in October, this is in law petty treason, as if hee had continued servant when hee did the fact, because it relates to the malice conceaved when hee was his servant. Now then having shewed that a terme or other chatell reall or personall, passeth not nor is transferred in property to the devisee untill the assent of the Executor bee thereunto had; Wee now put the case that this assent is not had till a yeere, or some such good space after the Testators death, and make our question whe­ther this shall have relation to the Testators death, viz. to bee in the lawes account as if it had then beene. Or perhaps to some purposes so to stand, and to others not so. That this is usefull, and materiall to bee knowne bee it thus shewed. One bequeatheth his terme of tithes of an advowson of an House or land by him first leased to an undertenant for rent, and dieth in May, the Executor assenteth to the be­quest in October, betweene which two times tithes be set out, the Church becommeth voyd, rent groweth payable; now if this assent shall [Page 137] relate to the Testators death, the devisee shall have these else not; the like cases may be put of the brood of Cowes, Mares, and Ewes, fallen betweene the death of the Testator, and the assent; so also of Fleeces of Sheepe shorne, &c. Now to come to the point, it is reported by the Lord Cooke, to have beene held in the late Queenes time,Tr. 41. Eliz. that this assent shall as be­tweene the Executor,Co. lib. 5. fo. 1 [...]. and the legatee, have re­lation to the Testators death,B. San ders Case. yet so that if the Executor before his assent to the devisee of a lease committed wast;Vide Plow. com. of an action of tresp. against a stran­ger for taking before assent. 280. b. now the action of wast shall bee brought against the Executor, in the Tenuit for the wast done before, and not a­gainst the devisee in the Tenet. But put the case that the legatee before the Executors assent granted the terme to I. S. now if to any pur­pose this assent shall have relation, it shall cer­tainly so bee to make good this grant, as mak­ing the legatee to bee estated, and consequent­ly able to grant before the Executors assent, yet doe I not finde any opinion or resolution in the Point, but finde it debated at the Barre in the late Queenes time betweene Puckering, P. 25. Eliz. and Egerton, in the case of administration granted to A. after her grant a free terme, left by her intestate husband; but I finde no resolution therein, nor perhaps wants there materiall dif­ference betwixt that case, and the other: for there the devisee had at least an inception of title by gift of the owner, wanting onely a circumstance of assent to perfect it: but heere [Page 138] this woman till administration had not so; un­lesse perhaps the Statute 21. Of Henry the eighth, directing or enjoyning ordinaries to grant administration shall amount to a kinde of title, ad rem: though not yet in re. But to returne to the Point of assets;48. E. 3. 15. where a reversion is grāted by deed or fine, if the lessee a good time after doe atturne, this shall have no relation to the time of the grant; So as for wast commit­ted or rent growne due between the grant, and atturnement, the grantee can have no remedy. Therefore it is good for him who buyeth or hath any thing of the gift of a legatee, to have the assent of the Executor, before the sale or gift well testified, or if the assent bee not had till after, let him take a new gift, that hee may not rest in a doubtfull case, for besides the pre­misses that great legist, Sir Edward Cooke when hee was a practiser to Master Stubbes of Norfolk, for his Sea gave his opinion as I have beene confidently informed, that where a lessee, for yeeres, being outlawed did grant his terme, and after reversed the outlawry, this did not make good the grant by relation, it not being in the grantor at the time of his grant, and this hath much affinity with the principall point, for there if the relation helpe not, the grant is not good from the Legatee.

Divers cases of bequests considered, and expounded.

IF a termor of an House,14. Eliz. Dy. 307. conte, in a grant. 31. Eliz. bequeath his House to B. without expressing how long he should have it, he shal have the whole terme, and num­ber of yeares, So of land.

Also by the name of the House, the Orch­ards, Gardens, and Backesides doe passe: yea if the House with thappurtenances be be­queathed thereby, the lands belonging to the House or used with it doe passe, though yet they would not so doe, by such words in any lease,Sum. Silv. 286. deede, or grant, yet by some Civilians or Canonists, the Orchard belonging to an House shall not passe by the onely gift of the House without some words, shewing the in­tent of the Testator so to bee; or except one gate or doore leade as well to the Orchard, as to the House, but some other of them hold that it doth passe without any such helpe of circumstance, so as it bee adjoyning to the House.

If a lessee for yeares give his terme by his will to A. hee shall have it without paying any rent,Ibid. ut supr [...] for the Executors shall pay it for him, a▪ I finde in the Summist, but against reason me thinkes.

If one bequeath his indenture of lease, his whole state in that lease passeth. So if one [Page 140] bequeath his obligation or other specialty, the debt or duty it selfe shall go to the legatee; and by the canon or civill law the very action it selfe passeth,Ibid. ut. supra. viz. 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,Yet 48. E. 3. 14, 15. It is admit. that such a di­visee of all goods after debt paid, shall have a duty re­sting in ac­count. 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,Quae. for that only is to be accounted the te­stators which he hath ultraes alienum. 36 Hen. 8. Dy. 59.

By a bequest of all utensils or household­stuff,Dy. ib. supra. plate nor jewels are not given.

If one bequeath to his wife all her apparell,Sum. Silv. 286. 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,Ibid. Ʋenit ornamen­tum [Page 141] 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, Ibid. 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,Ibid. b. 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,Ibid. 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, Ibid. 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 [Page 142] 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,Sum. Silv. 286. 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,Ibid. 287. 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.

[Page 143] So againe finde I,Ibid. 286. 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,Ibid. 284. a. 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,15 Eliz. Dy. 331. or debts and legacies, it is a void bequest, because it is no more then the law would say if he had say­ed nothing.Plow. Com. 545. b. So if it be generally to performe his will.Co. lib. 8. 96. a.

If one seised in fee simple of land bequeath [Page 144] 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,By deed or word in life. the lea­ses shall not passe,4 E. 6. Bro. Done, &c. 43. as was held in the time of Ed. the 6. And so also was it admitted in Port­mans case,Tr. 37. Eliz. in ba. reg. Portm. ver. Simmes or Willis. divers times argued. 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.Cap. 28. See also the state of Marlbr giving an action to the successor ad re­petenda bona predecess. Yet an eject. custod. hath [Page 145] been maintained thereupon:4 E. 3. cap. 7. So the stat. 5 R. 2. ca. of forf. of goods by those who go beyond the Sea. 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.cap. 16. 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, In all these goods are comprehended 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 7th. it seems bona & catalla were taken for synonyma or all one.13 H. 7. Kelw. rep. 35. a. 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,Low and Car­ters case Tr. 37. Eliz. in ba. reg. then &c. Popham cap. Justice held, that if she married at all, this was a mar­rying from the house, for she was no longer [Page 146] widdow of that house, though she married with one of that kindred, and who had no other house, but would dwell in the bequeathed.

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.See Plow. 184. a Debt against the Executor of an Executor 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,19 Ed. 1. & 14. Ed. 3. Fitzh. Executor 87. & 103. 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.11. Ed. 3. & 13. Ed. 3. Fitzh. Ex. 78. 92. But I must confesse, I finde both books to the contrary before any Statute made in the point,25. Ed. 3 cap. 5. and after an act of parlia­ment to enable them to bring actions, and to make them subject to actions, yet the Statute [Page 147] 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 s [...]ll land, &c. This not performed in his life time, shall not be performable by his Executor,19. H. 8. 9. 10. 4. El. Dy. 210. 32. H. 8. cap. 37. So 32. H. 8. 28. leases. 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,And 32. H. 8. cap. 34. Condi­tions, & 13. El. cap. 5. & 27. 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.Eliz. cap. 4. Of fraudulent conveyances. Yet the statute Westm. 2. cap. 23. for executors was taken not to extend to executors of executors.21. H. 8. cap. 15. for falsifying recoveries. 39. H. 6. 45. Quod non est lex. So as now in all cases except of speciall trust or authority,7. E. 3. 62. 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.

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.

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 1 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 2 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 [Page 150] 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.

3 The nature of the debts, and so sometime of legacies, may be so different, as thence may spring a just motive to disproportion pay­ments, to pay more to one then another, rate for rate, and so to suffer one to lose more then another. One debt may perhaps be use for money, or at least money lent for use, ano­ther may be money freely lent. Another debt for land of inheritance bought; another debt for a lease, chattels, or moveables, come to the executor. The first merits the least respect, next the second, then the third, and the last the most. But where without any of these mo­tives there is not equality held in payment, Peccatur (as I think) in conscientiam. But let every one stand or fall by or to his own, or to him who is greater then his conscience. This equality S. Paul in another case recommends to the Corinthians. 2 Cor. 8. v. 14. And Salomon whilest no in­equality appeared in the point of right, shew­ed his disposition to have made an equall divi­sion of the child betweene the mothers, who were joynt claymers and competitors for it.

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