TOUCHSTONE OF Wills, Testaments, AND Administrations.  
BEING A COMPENDIUM OF CASES & RESOLUTIONS Touching the same.  
Carefully collected out of the Ecclesiastical, Civil and Canon-Laws, As also out of The Customs, Common Laws, and Statutes of this Kingdom.  
By G. MERITON, Gent.  
Licenced Feb. 26. 1667/ 8.  
LONDON: Printed for W. Leak, A. Roper, F. Titan, T. Dring, J. Place, W. Place, J. Starkey, T. Basset, R. Pawlet, & S. Herrick, Booksellers in Fleetstreet and Holborn. 1668.   

To all his loving Countrymen.  
Dear Friends,  
HAving received a deep impression in my thoughts of that Christianlike Moral, Non nobis solum natisumus, sed partem Parents, partem Amici, pariem Patria vendicant; I thereupon begun seriously to excogitate how I might lay out that small Talon which the Lord hath lent me, to the profit and good of my Country: and taking notice of the Quotidian enmities, Contentions, and Quarrels, which arise amongst men about the Devises, Bequests and Legacies of their dead Friends, which most commonly happens by reason of the vicious penning of their Wills and Testaments, and is chief occasioned through the scarceness of Writers on this Subject in our English Tongue; there being very few Books in the same Language save Mr. Swinbornes' excellent Treatise Testamentary, which is now almost out of Print, and can hardly be gotten at any Stationers; and besides, the price thereof doth exceed many honest Countryman's purse; and so many men are left in mists of ignorance, by reason whereof their Wills and Testaments are often so strangely drawn, with so many dubious, knotty, and sometimes nonsensical Clauses and Sentences therein, as that often the Testators meaning can searcely, and sometimes not at all be found out; whereupon it happens that sometimes the Bequests and Devises are void, and so the Legataries lose that which was intended them: otherwhiles they are forced to sue for their Legacies, whenas Doubts a rise upon the Testators words and meaning in his Will, and then often the Remedy proves worse than the Disease, and more Charges spent in the Law for the recovery of the Legacy, than sometimes it is worth: Therefore, that my honest Countrymen may be partly informed in some particulars how they may dispose of their Estates at their deaths, and that they may make their Wills according to Law, so that their intentions and meanings may not be perverted and wrested to a wrong sense after their Deaths, and those who were intended and expected to reap benefit by the Testators death, rob of their just Rights and Deuce; I have thereupon taken the pains to collect several Cases and Resolutions out of the Ecclesiastical, Civil, and Canon-Laws, and also out of the Customs, Common-Laws, and Statutes of this Realm touching Wills and Testaments, their several sorts and forms, what shall be a good Will, who may make one, and who may be an Executor, and of the several ways of appointing them; and also touching Tutors, children's Portions, Devises, and Legacies; together with the Probat of Wills, passing Accounts, payment of Mortuaries; and of the power of the Ordinary in granting of Administrations; and touching Appeals, and several other things, whereby my Countrymen at an easy charge and with little expense of time, may now take a view of those things which have so long been kept from their sight under the Vizard-Mask of an unknown Tongue, and they thereby deprived of the knowledge thereof. And now, Dear Countrymen, (for to you only do I speak) if I can have but your goodwill, and good word for all this, it shall suffice  
Your loving Countryman and servant, GEORGE MERITON.   

The Contents of the Chapters.  

CHAP. I. WHat a Testament is, with the several kinds and forms thereof, and the difference between a Testament, a last Will, and a Codicil. pag. 1.  
CHAP. II. What shall be a good Testament or Will, and what not. p. 25.  
CHAP. III. Who may make a Testament, and who not. p. 44.  
CHAP. IU. Who may be an Executor, and who not. p. 65.  
CHAP. V Of the several ways of appointing an Executor. p. 77.  
CHAP. VI Of appointing Tutors, and touching children's Portions. p. 99  
CHAP. VII. What things are Deviseable by Will, and what not. p. 113.  
CHAP. VIII. Several Cases concerning the bequeathing of Legacies, and also touching Devises. p. 125.  
CHAP. IX. Several Cases concerning the Duty of an Executor. p. 159.  
CHAP. X. Of making of an Inventary, proving of the Will, with the Fees thereof, and before who it ought to be proved; and of passing an Account, and paying of Mortuaries. p. 199.  
CHAP. XI. Of the power of the Ordinary in the granting of Administrations, and some few Cases touching Appeals, and also of the Office of an Administrator: and how far the Ordinary is chargeable for the Intestates Debts. p. 223.    

THE TOUCHSTONE OF WILLS and TESTAMENTS.  

CHAP. I.  
What a Testament is, with the several kinds and forms thereof; and the difference between a Testament, a lest Will, and a Codicil.  
1 A Testament is derived of Testatio Mentis, and most properly is defined after this manner: Testamentum est voluntatis nostrae justa Sententia, de eo quod quis post mortem suam fieri voluit. A Testament is a just sentence of our Will touching that which one would have done after death. Brac. Latches Rep. fol. 137. cowels Instit. pa. 117. Swinbornes' Wills, etc. part 1. Sect. 2. in princ. Justinians Inst. Tit. 10. l. 2. the Test. numb. 1.  
2. Every Testament is a last Will, but every last Will is not a Testament; for a last Will is a general word, and agreeth to every several kind of last Will, or Testament; but it's properly to be called a Testament, when an Executor is named: for by the naming an Executor, it differeth from the rest. Franc. Mantica de Conjectura ultimar. voluntatum, lib. 1. Tit. 5. Swim. part. 1. Sect. 1. Simo. de Praetis. de Interpretatione ult. vol. lib. 2. Dubium 1. Solutio 9  
3. Observe that of Testaments, some be written, some unwritten or Nuncupative; some solemn, some unsolemn; some privileged, and some unprivileged of every kind, whereof we shall speak a word or two. Michael. Grass. Thesaur. come. opinion. Sect. Testa. Questio 10, 11. numb. 1, 3. Franc. Mantica de Conject. ult. vol. lib. 1. Tit. 7. Swim. part 1. Sect. 8.  
4. Now as to the formal making of a Solemn Testament, many things are requisite by the Civil Law. As 1. That there be seven Witnesses present at the making thereof. 2. They must all be required to be there on purpose: for it is not sufficient, if they were there only by chance, and unrequested. 3. Every Witness must subscribe his Name with his own hand, if he can write, or else two or three others for him. 4. The Testator with his own hand also must write his own Name, and the Name of him whom he will have to succeed him, and have all his goods; and if the Testator cannot write, than he must name the party (that shall succeed him) before the Witnesses. 5. The Witnesses must be such as are not prohibited in that behalf. 6. The Witnesses must see and behold the Testator, and not hear him only; and the Witnesses also must seal the Testament, either with their own, or the seal of some other. And lastly, the Testament must be finished at one time, without any Intermission, except natural, such as cannot be avoided: And if any of these particulars be wanting, than it is reputed for a solemn Testament; but here in England, we are not necessarily tied to observe this strict form of making our Testaments.  
5. For with us it is sufficient, if the Testator do appoint his Executor, and declare his Will before two or three Witnesses, whose probation of the same, as concerning the appointment of an Executor, or disposing of Goods and Chattels, is good enough; ● and such a Testament is called an unsolemn Testament. Lyndwood in C. Statut. verb. Probatis lib. 3. Provincial. Const. Cant. Brac. lib. 1. c. 16. Swim. part 1. Sect. 3. and part. 4. Sect. 24. Glan. l. 7. C. 6.  
6. But if the Testator devise any Lands, Tenements, or Hereditaments, than the Testament must be in writing, and done in the life-time of the Testator, and approved by him for his Will before his death; except in some special Cases. See the next Chapter, Num. 37. 32 H. 8. cap. 5. Noy's Maxims p. 97. & Swim. part 1. sect. 11. & part 4. sect. 25.  
7. Also if a man pleaseth, he may make his Testament in writing, wherein he disposes of his Goods and Chattels only; and may also use the testimony of more Witnesses than two, and procure them to subscribe their names to every sheet of the Testament; which is very safe, and may prevent many forgeries. Swim. part 1. sect. 10. num. 4.  
8. The most usual form of Wills and Testaments with us 
The form of a Testament or ●ast Will.  here in England, is after this manner. In the name of God Amen. The tenth day of April, 1667. in the nineteenth year of the Reign of our most gracious Sovereign Lord King Charles the Second of England, etc. I Peter Style of B. in the County of York, Gent. being sick and weak in Body, but of sound and perfect memory (thanks be to Almighty God for the same.) And calling to mind the uncertain state of this transitory life, and that all flesh must yield unto death, when it shall please God to call: and being desirous to settle things in order, do make this my last Will and Testament, wherein is contained my last Will and Testament in manner and form following; revoking, and absolutely annulling by these presents, all and every Testament and Testaments, 
A special Revocation of a former Will See the next Chapter, Num. 34.  Will and Wills heretofore by me made and declared either by word or by writing, notwithstanding any promise to the contrary, or Clause derogatory in the same; And this to be taken only for my last Will and Testament, and none other▪ First, I bequeath my Soul to Almighty God my Maker, and to Jesus Christ my Redeemer, and to the Holy Ghost my Sanctifier; and my Body to the Earth from whence it came, to be huried in such decent and Christian manner, as to my Executors shall be thought meet and convenient; there to rest until my Soul and Body shall meet again, and be joined together at the joyful Resurrection, and be made partakers of the never-fading joys of immortality, which God in mercy, through the merits of Jesus Christ alone, hath promised and prepared for all those that truly and unfeignedly repent and believe in him. And touching such Temporal Estate of Goods, Chattels and De●ts as the Lord hath been pleased far above my deserts to bestow upon me, I do order, give, bequeath, and dispose the same in manner and form following. Imprimis, I give and bequeath unto my Son Henry Style, when he shall attain the age of one and twenty years, the sum of Forty pounds of 
Observe the difference between these two Bequests; In the first Case nothing is due till the age of 21 years; but it is otherwise in the second Case, for there it may be recovered by the Executors or Administrators of the Child, though he die before the age of 21 years.  lawful money of England, to be paid to him by mine Executors hereafter named. Item, I give and bequeath to my Son Thomas Style Forty pounds of like money, to be paid to him (by my said Executors) when he shall attain the age of one and twenty years. Item, I give, etc. And lastly, I make, constitute, ordain and appoint my dear and well beloved Wife Mary Style sole Executrix of this my last Will and Testament, to whom I bequeath all the remainder of my Goods and Chattels, movable and , after the satisfaction of my Debts, and payment of the Legacies above by me bequeathed. And to her care and tuition also I leave all my Children, and I do 
A clause whereby the tuition of the Testators Children is committed to the Executor.  hereby nominate & appoint my said Wife Tutrix to them and every of them, until such time as they shall severally attain their ages of one and twenty years. In witness whereof I have hereunto set my hand and seal, the day and year first above written.  
Peter Style.  
9 But no man is tied to observe this, or any other set form in the making of his Will, for it skills not how it be drawn, so as the Testators meaning can but be found out; neither is it material whether the Testament be written in parchment or paper, or the like stuff apt for writing; nor what Language the same be written in, either Latin, Greek, French, or any other Tongue; nor whether the same be written in Secretary, Roman or Court-hand, or any other hand, so that the same may be but read and understood; nor is it material with what Notes or Characters the same be made, as XX s. for twenty shillings, CL l. for an hundred and fifty pounds, 1590. for one thousand five hundred and ninety, with such like; or the Figure (1) instead of the Letter A. or (2) instead of the Letter B. etc. or some other more strange Characters; yet it is good enough, if the same by any means can be but read and understood; unless the same Writing be but only a Preparation to the Testament, and not the Testament itself: for then in such Case, though the same may be read and understood; yet it is of no force, and the party shall be said to die Intestate. Michael. Grass. Thesaur. come. opinion. sect. Test. Quest▪ 10. Swim. part. 4. sect. 25. numb. 2, 3, 4, 5, 6. Justinians Inst. l. 2. Tit. de Test. ordinandis numb. 12.  
10. Words and Sentences also are not of necessity required for the form of a Testament, but only for the expressing of the will and meaning of the Testator; and therefore if the Scribe omit some words by Error, whereby the sense is imperfect: As for Example, if he writ thus; I make my Wife my of this my last Will and Testament, leaving out this word Executrix; yet in this Case his Error shall not hurt; it for the Law doth presume more was spoken, though less was written; and therefore she shall be taken for Executrix. Swim. part 4. sect. 25. numb. 7. Molin. in l. 1. c. de Test. sect. de verb ob. numb. 8. in fin.  
11. Also if there be no Witnesses of a written Testament, yet if it be certain and undoubted that the Testament is written or subscribed with the Testators own hand, it is sufficient; but if it be doubted whether it is his hand or no, than the Testimony of Witnesses is necessary to confirm the same to be the Testators own hand: or where there is no suspicion of fraud, proof may be made and allowed by comparing of hands with other writings signed by the Testator. Maschard. de probat. verb. Testament. Conclus. 1352. numb. 60. Swim. part 4. sect. 25. numb. 8. Michael. Grass. Thesaur. come. opinionum, sect. Inst. Q. 16. n. 6.  
12. Having spoken of a written Testament, we shall now show what a Nuncupative Testament is, and that is where the Testator by word of mouth, before a sufficient number of Witnesses, doth declare his mind, and names his Executor; and this Testament is of as great force and efficacy as a written Testament, except where Lands, Tenements and Hereditaments are devised: and to the making of this Nuncupative Testament, no precise form of words is required, neither is it material whether the Testator speak properly or unproperly, so that his meaning do appear, as is showed before. It is called Nuncupative à Nuncupando, id est, Nominando, of naming an Executor; and is most commonly made when the Testator is very sick and weak, and past all hope of recovery. Molineus in l. 1. sect. Test. ordin. ff. de verb. ob. numb. 8. in fin. Just. Instit. sect. de Test. ordinandis in fine. Mincing. in D. sect final. Swim. part 1. sect. 12. & part 4. sect. 26. Terms of the Law, verb. devise. Noyes Maxims, pa. 96. Perkin, numb. 476.  
13. If such a Testament be put in writing after the Testators death, yet it remains a Nuncupative Testament still. Noyes Maxims, pa. 96. Swim. part 1. sect. 11. numb. 2. in princ.  
14. A man hath that privilege in a written Testament, which he cannot have in an Nuncupative Testament; for in a Nuncupative Testament, he must publish & declare his mind; but in a written Testament he may seal up his mind, and keep it secret till after his death; only it behoves him to show the same after it is sealed up to some Witnesses, and say unto them, This is my last Will and Testament, or, Herein is contained my last Will; and so let them set their hands to some part thereof, or otherwise to take such special Notes and Marks thereof, as that they be able to prove the Identity of the writing after the Testators death; and in such Case it is good enough, though none of the Witnesses were privy to the Contents thereof. Paris. Consil. 19 vol. 3. numb. 25, 26. etc. Maschar. Tract. de probat. Conclus. 10. 1352. numb. 173. Clar. sect. Test. Quest. 4. numb. 3. Swim. part. 1. sect. 11. numb. 6, 7, 8, 9 Simo. de Praetis. de Interpretat. ult. volun. l. 1. f. 31.  
15. As touching privileged Testaments, there are three sorts thereof; viz. Testamentum Militare, Testamentum inter liberos, Testamentum ad pias Causas: That is, a Testament made by a Soldier, a Testament made by a Father amongst his Children, and a Testament made for good and Godly uses. Some other there are also, but their privileges are but small in comparison of these. Mantica de Coni●●●u 〈…〉 voluntat. lib. 1. Tit. 5▪ 〈…〉 part 1. sect. 13.  
16. As to the first of these, it is observable among the Civilians, That a Soldier in Arms, and in actual service of Wars, is not disabled by any of those impediments whereby others are disabled to make their Testaments, except in Cases of Furor, or lack of Reason; and for other causes also when he is disabled Jure gentium. And whereas there be divers which be prohibited to be Executors or Legataries to other persons, yet notwithstanding they be Executors or Legataries to a Soldier, except in some few Cases. And whereas also no other person can die with two Testaments, yet a Soldier may, and both Testaments shall be deemed good, according to the will and meaning of the Testator. And likewise whereas another person cannot by the Civil Law die partly Testate, and partly Intestate, yet a Soldier may. Mincing. in Tit. de Milit. Testamen. Instituend. in principio. Fitz. Abr. Tit. Execut. num. 26. Franc. Mantica de Conject. ult. vol. l. 6. Tit. 1. num. 32. Swim. part 1. sect. 14. Mich. Grass. The saur. come. opin. sect. Testam. Quest. 3. num. 1. Swim. part 7. sect 11. num. 5.  
17. As to the Second, where the Father maketh his Testament, and nameth his lawful and natural Children his Executors, and giveth them the residue of his Goods; to this kind there also belongeth several privileges: for if there be found after the Testators death, two Testaments of divers Tenors, and it doth not appear which is first, nor which is last; in this Case the Testament made in favour of the Testators Children shall be deemed the later, and shall take place; whereas if neither be in favour of the Children, nor otherwise privileged, than both are void; except it be in case of a Soldier, who by the Civil Law may die with two Testaments as aforesaid. Also a Testament made in favour of Children is not so easily revoked as other Testaments are: for whereas in other Testaments the former is revoked by the latter, and that ipso jure, without any express revocation; yet by the Civil Law a Testament among Children is not revoked by a latter Testament, wherein strangers are preferred, unless it be mentioned and revoked by express words; or unless the latter Testament be made ad pias Causas, or else some great Displeasure or Enmity have happened betwixt the Father and Children, or some like cause have come to pass, whereby it may be made appear, that the Father did repent him of the making of the said Will. And lastly, another privilege belonging to this Testament, is, That if there be no Witnesses to prove the same, yet if the Testament be found among other Writings in the Testators Chest, or like place, and undoubtedly appear to be written or subscribed with the Testators own hand, or by him procured to be written by some other; then in such Case it is good enough: but this Privilege also is allowed to all other Testaments here with us in England; as is showed before in Num. 11. See the next Chapter, Num. 33, 40. Clar. sect. Test. Quest. 100 Franc. Mantica de conject ult. volunt. l. 6. Tit. 2. Swim. part 1. sect. 14. Mich. Grass. Thesaur. common. opin. sect. Testam. Quest. 86. num. 11.  
18. The third kind of privileged Testaments, are those which are made to pious uses; as when one gives his Goods to be distributed to poor Orphans, Widows, Strangers, Prisoners, lame and diseased poor persons, or to Hospitals, Churches, repairing of Bridges, or the Walls of a City or Town, when the same be decayed and stand in need of repairing; and to such Testaments belong many privileges also. As first, it may be written with strange and unaccustomed Characters and Notes, and yet the same shall nevertheless be as effectual, as if the same had been written after the usual and accustomed manner. Also, if such a Testament be found canceled, and it is not known whether the Testator did willingly and wittingly cancel the same or no; in this Case it shall be presumed to have been canceled unadvisedly, and shall take effect notwithstanding, as if it had not been canceled at all: whereas in other Testaments the contrary is presumed. And another Privilege is, That such a Testament is not void for incertainty (as other Testaments are;) and therefore if the Testator say, I make the Poor my Executors, or, I Will that my Goods be distributed amongst the Poor; such manner of appointing Executors or Legacies is good. Also if there be two Testaments found of divers Tenors, and it doth not appear which is last; in this Case, if one of them be made ad pias causas, that shall be presumed to be last made, and take effect, unless the other Testament be inter liberos, and then that shall be deemed last, & not the Testament ad pias causas. There are several other Privileges reckoned up by some Authors to belong to this kind of Testament; for Tiraquel. in Tract. De Privilegia piae Causae, reckons up 170 Privileges belonging to such Testament; but most of them are here in England allowed to all Testaments, though they be not made ad pias causas. Franc. Mantic. de conject. ult. voluntat. l. 6. Tit. 3. num. 3. & 43. & l. 12. num. 30. Tit. 1. & Tit. 2. num. 25, 32. Swim. part 1. sect. 16. & part 7. sect. 8. num. 8. & sect. 16. in fin. Tiraquel. de privilegia piae causae, c. 12, 16▪ & 56.  
19 Unprivileged Testaments are those which have not any Freedom or benefit contrary to the common course of ordinary Law, but are tie● to such observations as the Law requireth, and hath appointed regularly for all Testaments. Swim. part 1 sect. 17.  
20. Now having spoken something of Testaments Solemn and Unsolemn, Written and Unwritten, Privileged and Unprivileged; I shall speak a word or two of Wills and Codicils, and so conclude this Chapter.  
21. The definition of a Last Will differeth but little from that of a Testament; for a Last Will is thus defined, Ultima voluntas est legitima dispositio, de eo quod quis post mortem fieri velit. A Last Will is a lawful disposing of that, which any one would have done after death. Franc. Mantica de conject. ult. voluntat. l. 1. Tit. 4. num. 18. Swim. part 1. sect. 4.  
22. There is also another kind of Will called a Codicil, and is defined after this manner, Codicillus est voluntatis nostrae justa sententia, de eo quod quis post mortem suam fieri velit absque Executoris constitutione. A Codicil is a just Sentence of our Will, touching that which any one would have done after his death, without the appointing of an Executor: by force of which last words, a Codicil is made to differ from a Testament; for a Testament can no more consist or be without an Executor, than a Codicil can admit of an Executor. Swim. part 1. sect. 5. num. 2. Franc. Mantica de conject. ult. voluntat. l. 1. Tit. 8. num. Justinians Inst. l. 2. Tit. de Codicill is, num. 2.  
23. These Codicils are most commonly made by the Testator, after he hath made his Testament, wherein he hath forgotten something which he hath a mind to put in; and than it is done by way of Codicil, and annexed to the Testament: but whether it be made before or after the Testament, it is to be taken and reputed for parcel thereof, and aught to be performed as well as the Testament; unless being made before the Testament, it appear to be revoked in the Testament, or be contrary to that which is contained in the Testament. Reformatio Legum Ecclesiasticum Tit. de Testam. cap. 5. Swim. part 1. sect. 5. num. 11. Justin. Inst. l. 2. Tit. 〈◊〉 Codicill is, num. 1. Vigel. method. Jur. Civilis, part 4. l. 9 cap. 23. in principio.  
24. When a Codicil is made by one that dieth Intestate, the Legacies therein given, must be paid by him that hath the Administration of the Goods of the Deceased, as if he were Executor. Bro. Abra. Tit. Devis. numb. 35. Swinbor. part 1. sect. 5. num. 10.  
25. In some respects Codicils and Testaments are quite contrary to one another; for whereas a man cannot die with two Testaments (because the latter doth always infringe the former, except in some special Cases) yet a man may die with divers Codicils, and the latter doth not hinder the former, so long as they be not contrary to one another. Also where two Testaments are found, and it doth not appear which was first, nor which is last; in this Case they are both void, except in special Cases, as is showed before, Numb. 17, & 18. But if two Codicils be found, and it cannot be known which was first or last, and one and the same thing is given to one person in one Codicil, and to another person in another Codicil; here the Codicils are not void, but the persons therein named aught to divide that thing betwixt them, by the Civil Law. Michael Grass. The saur. common. opinion. sect. Codicillus. Swim. part 1. sect. 5. in fine.   

CHAP. II.  
What shall be a good Testament or Will, and what not.  
26. THat Wills and Testaments may lawfully appear, it i● necessary that there be sufficient proof, either by writing or by witness; and as to that, know, that two Witnesses are sufficient, if they be without lawful exception. cowels Inst. p. 118. Waterhouse on Fortesc. fol. 350. Glan. l. 7. c. 6. Bract. l. 1. c. 16. Swim. part 4. sect. 21. numb. 2.  
27. That is, if they be not perjured persons, or persons of infamous life, as Malefactors, or Law-breakers; or Children, Idiots, Lunatic persons; or of the Kindred or Alliance, or Tenants or Servants to the party producing them, or Capital Enemies to the party against whom they are produced, or persons who are to reap benefit by their depositions, or such like, etc. Cowel on Litt. fol. 6. Swim. part 4. sect. 21. Maschard. de probat. verb. princ. Conclusio 1168. & verb. Criminosus, Conclus. 469. & verb. Furiosus Conclus. 828. Swim. part 4. sect. 21. numb. 7, 8, 9, 10. Ref. Legum Eccles. Tit. de Testamentis, c. 17. Waterhouse on Fortescue, fol▪ 357 & and 358.  
28. But if the exceptions be but small, and such as do but in part diminish the Witnesses credit, as the exception of friendship, householdservant, or suspicion of some small fault, than the number may supply the defect; and so the Testimony of three or four Witnesses, not altogether clear from those exceptions, is as good as the Testimony of two Witnesses without all exception. Francis. Mantica de Conject. ult. voluntat. lib. 6. Tit. 3. numb. 8. Swim. part 4. sect. 21. numb. 3.  
29. And sometimes the Testimony of one Witness is sufficient; as where the Testator in his life-time commits something in secret to some one person (being loath perhaps that any other should know it) and willeth that that same person shall be credited for the Declaration of his Will; in such case that person alone is sufficient to prove the Contents of the last Will and Testament of the person deceased. Olden de probation, fol. 286. b. Swim. part 4. sect. 21. numb. 4.  
30. The Testimony of a Legatary also is allowed in probate of Wills, but not for his or their own Legacies, but for all the rest of the Will it is good enough. Justin. inst l. 2. Tit. de Test. ordinan. numb. 11. Swim. part 4. sect. 21. numb. 11. Porcius in d. sect. Legatar.  
31. But note, if a man in perfect health be demanded, who shall be his Executor, or have his goods after his death (which question is very familiar and common amongst companions) and forth with he names some person, to whom he saith he will leave his goods after his death; This is not to be taken for a Testament, or last Will, neither is that person named to be admitted Executor, nor to have his goods, unless it be proved that the Testator at the time when the words were spoken, had Animum Testandi, that is to say, a full mind and resolute purpose at that time to make his Testament or last Will; and this purpose must be proved by circumstances, as well as by words; as, that he framed himself very seriously to the making of the same, desiring them that were present to bear witness of his Will, etc. Justin. Inst. l. 2. Tit. de Milit. Testamento, numb. 1. Swim. part 1. sect. 3. numb. 24. Menoch. de Arbitria Judicis, c. 496.  
32. Note, that the last Testament doth always make void the first, except in some special cases, as where the latter is made through just fear, or by cunning and deceitful fraud or flattery, or at the importunate request and desire of another person, who expects to reap benefit thereby, especially if the Testator be very sick at such time, and do it to be at quiet and rest; in these cases the latter Testament shall not make void the former; but there must be Witnesses to prove these things, if the parties concerned intent to make void the latter Testament. Menoch. de Arbitrio Jud. c. 395. numb. 41. Socin. Jun. Consil. 14. & 148. vol. 2. numb. 15. Simo. de Praetis. de Interpret. ult. voluntat. l. 4. fol. 226. numb. 49. Swim. part 7. sect. 3. Numb. 1. sect. 4. numb. 3. & 6. & sect. 14. numb. 3 & 5. Paris. Consil. 10. l. 3. numb. 4. Noyes Max. pag. 97.  
33. Also if the Testator have made his Will, wherein he hath bequeathed several Legacies to his own Children, or to his Brothers, and afterwards makes another Will in favour of other persons; this last Will shall not revoke this first, without express words of revocation of the first Will, as is showed before in the first Chapter, Numb. 17. Mich. 2 Car. 1. Eyres and Eyre's Case in Chancery, Cro. 1. part Rep. fo. Swim. part. 1. sect. 15. num. 5.  
34. But in other Wills and Testaments, the latter doth make void the former; albeit the first were a written Will or Testament, and the latter but a Nuncupative one, or that there were twenty Witnesses to the first, and but two to the second, and that ipso jure, although there be no mention in the second Testament of revoking the former; unless there be a Clause Derogatory in the former Testament: as where the Testator saith in the first, If I make any Testament hereafter, I will that the same shall be of no force; then in such Case it is most safe and convenient in the latter Testament to revoke the first, by saying, I make this last Will and Testament, Notwithstanding that Clause Derogatory in my former, whereby I would that no Will or Testament afterward to be made by me should be of any force. Vasq. de success. Resoluc. l. 1. sect. 1. num. 26. Pasc. 14 Eliz. Dyer fol. 310. Mich. Grass. Thesaur. come. opin. sect. Testam. Quest. 99 num. 4, 5. Swim. part 7. sect. 14. num. 4. 11, 12, 13, 14, 15, 16, 17, 18. Perk. num. 478 Paul▪ de Cast. Consil. 206. Vol. 1.  
35. Also where the Testator hath made two Testaments, a former and a latter, and afterwards lying sick, they are both brought unto him, and being desired to show which he intends shall stand, and he saith, that the first should be his Last Will, or if he take that of the first date, and deliver it for his last Will; then in such Case that Will shall stand, and the other shall be void. Perkins num. 479. Mich. 44 E. 3. fol. 33. Pacis Consultum pag. 81.  
36. Likewise if an Executor be named in the first Testament, and none in the second Will, than the first Testament shall stand, and the latter shall be added only by way of Codicil. Vigel. Method. Jur. Civilis part 4. lib 9 c. 23. in princip. Swim. part 7. sect. 14 num. 5.  
37. Where it is said before, that where Lands are devised, the will must be in writing, and done in the life-time of the Testator; yet if the Clerk be skilful in the Law, and takes Notes from the mouth of the Testator, for the devise of Lands, Tenements and Hereditaments, and afterwards proceeds to write the same in Form; but before it be finished or showed to the Testator, he departs this life; yet this is held and adjudged a good Will in writing, within the Statute of 32 H. 8. to convey Lands, Tenements, or Hereditaments. Mich. 6 E. 6. Sackvil and Brown's Case. Dyer, fol. 72.  
38. Also a written Will done in the life-time of the Testator, or by Notes as abovesaid, is good to convey Lands, though it be unsealed or unsubscribed, nor no Executor named therein; and such a Will which only concerns the bequeathing of Lands, Tenements, or Hereditaments, aught to be proved in the Chancery. Hill. 22 Car. 1. & Pasch. 23 Car. 1. B. R. Styles Regest. practicale, p. 357. Pacis Consultum, p. 80. Noye's Maxims pag. 97.  
39 If the Testator after he hath begun his Will, and before he have finished it, be suddenly strucken with Death or Insanity of mind, or some other impediment, so that he cannot finish the same; or if he have begun the same, and deferreth the finishing thereof till some other time, and in the mean time dieth, or otherwise becometh Intestate: In these Cases, though it seem by the Civil Law that such Testaments are void wholly; yet by the Law of Nations, and with us here in England, such Testaments are good for so much as is therein already bequeathed. Michael Grass. Thesaur. come. opinion. sect. Testament. Quest. 12. & 19 Mascha. de Proba. verb. Testa. Conclus. 1352. numb. 70. Swim. part 7. sect. 12. numb. 4, 9, & 10. Pacis Consul. p. 81. Simo. de Praetis. de Interp. ult. voluntat. l▪ 1. fol. 195.  
40. If there be two Testaments found, and it cannot be known which of them was first made, nor which was last made; in this Case they are both void, unless one of them be made in favour of the Testators children, or those who after his death are of right to have Administration of his Goods, if he had died Intestate; and the other Testament made in favour of Strangers; and then in such Case the Testament made in favour of the Children or Friends, etc. shall prevail and stand good, as is showed before in the first Chapter, numb. 17. Francis. Mantica, de conject. ult. volunt. l. 2. Tit. 15. num. 17. Swim. part 1. sect. 15. num. 2. & part 7. sect. 11. num. 2.  
41. Or if one of the Testaments be made Ad pias causas, and the other not, than the Testament Ad pias causas shall prevail, unless the other be Inter liberos amongst the Testators Children, and then it shall prevail, and not the Testament Ad pias causas, as is showed before in the first Chapter, Num 18. Francis. Mantica de conjectura ult. volunt. l 6. Tit. 3. num. 43. Swim. part 1. sect. 16. num. 7. & part 7. sect. 11. num. 6.  
42. Also where there are two Testaments, and one of them is proved before the Ordinary, etc. and the Executors are entered to the possession of the Goods, and then the other Testament is found, and it cannot be known which was first made, nor which was last made; in this Case the Testament already proved shall stand, and the Executors shall not be dispossessed of the Goods by means of the other Testament of the same Date. Sichar. in D. lib. ult. Swim. part 7. sect. 11. num. 4.  
43. If a man be so extreme sick, that he is almost at the point of Death, and can scarce speak; yet if he be of good understanding and sound mind, as may appear by his Gestures and sensible Speeches; in such Case he may make his Testament, so as it come of his own accord, and not at the earnest request or importunity of his Wife, or some covetous person, who expects and greedies after benefit by the same. Franc. Mantica de conject. ult. volunt. l. 2. Tit. 6. num. 5, 9, & 10. Socin. Jun. Cosil. 183. vol. 2. num. 27, 31, 34, & 39 Mich. 1654. B. R. Hatcher & Newborns Case. Still. Regest. Practicale, p. 359. Swim. part 2. sect. 25. num. 2, 5, 6, & 7. Simo. de Praetis. de Interp. ult. volunt. lib. 2. Dub. ult. Soluc. 4.  
44. If the friends of such a sick man, or any other persons, do without his knowledge prepare a Will in writing, and bring it to him, and read it, and ask him if that shall stand for his Testament, and he answers, Yea, and immediately after dieth; in this Case such Testament is not good, unless the Testator had first uttered his mind to the Writer or Inditer thereof, or had requested them to write his Will; or unless the Testator being of perfect mind and memory, had by plain and express words, or other apparent conjectures, confirmed the same, and not only by answering, Yea. Franc. Mantica de conject. ult. volunt. l. 2. Tit. 6. num. 10. Swim. part 2. sect. 25. num. 11. Gabr. l. 4. common. conclus. Tit. de Testam. conclus. 2. num. 13, & 17.  
45. If a man through just fear and constraint of some other person, do make his Testament, such a Testament is void, especially when afterwards the Testator declareth, That he would gladly alter his Testament, but for fear of such a person; and then such Testament is void, at least, as to such a person by him named, of whom he is afraid. Mich. Grass. Thesaur. come. opin. sect. Testament. Quest. 23. num. Swim. part 7. sect. 2. numb. 1. & 10.  
46. But here it is left to the discretion of the Judge, who ought not only to consider the quality of the threatening, but also the persons as well threatened as threatening; and in the persons threatened, the Sex, the Age, or Courage, or Pusillanimity; and in the person threatening, the power, the disposition, and whether he be a mere Boaster, or performer of his threats. Menoch. de Arbit. Judic. Casus 135. Maschar. de Probat. Conclus. 1054. Swim. part 7. sect. 2. numb. 7.  
47. Also a Testament made by fraud is void, unless the deceit of fraud be very small, such as would not deceive any rational man or woman; or that the fraud be not evil, as where the Testator intending to bestow all his goods on some vile person, omitting his honest Wife and Children; here if the Wife and Children do persuade him that such person is dead, or by some means deceive the Testator, and procure themselves to he made Executors, than this is not to be repelled as an unlawful Testament. Bald. in d. lib. 1. numb. 17. Swim. part 7. sect. 3. numb. 2.  
48. Though a man have sworn not to make a Testament, yet notwithstanding he may lawfully make one; and if he have made one, & sworn not to Revoke it, yet he may afterwards make another, and revoke the first: but than it is convenient, that he revoke his Oath also, and say, I make this my last Will and Testament, notwithstanding my former Testament, with the Oath therein contained not to revoke the same. Mich. Grass. Thesaur. come. opin. sect. Testament. Quaestio 87. Jul. Clar. sect. Testament Quaestio 94. Swim. part 2. sect. 24.  
49. It is necessary to the validity of a Testament, that the Testator have Ability to make a Testament, not only at the time of the making thereof, when the Testament receiveth his essence or being; but also at the time of the Testators death, when the Testament receiveth his strength and confirmation: And therefore if a woman make her Testament, and then marry, and die during marriage, such Testament is void; or if she make a Testament during marriage, and overlive her Husband, and then die, yet the Testament is void: but if she make her Testament before marriage, and overlive her Husband, and then die, in such Case the Testament is good; or if it were made during marriage, and after her Husband's death, she doth approve and confirm the same, and then die, in such Case also it is held to be good. Plo. Com. fol. 343. 37. Eliz. C. B. Forse & Hemlings Case, Co. 4. lib. Rep. fol. 60. Swim. part. 2. sect. 9 num. 4, 5, 6.  
50. A Codicil may be added by Parol to a Will in writing, and this Parol Codicil shall be put in writing, and affixed to the Will as a Codicil; and this may as well be done, as a Will in writing may be revoked by Parol. Hill. 22 Car. 1. & Pasc. 23 Car. 1. in B. R. Styles Regest. Practicale, p. 357. & Pasc. 14 Eliz. Dyer, fol. 310.  
51 If the Testator make his Will by Parol, which is afterwards put by another into writing, and he put more in then the Testator did express; yet it is good, as to so much as can be proved was expressed by the Tastator by Parol, and the rest is void. Pasc. 24 Car. 1. B. R. Styles Regest. Practicale, p. 357.  
52. One went beyond Sea, and wrote back a Letter that his Land should go in such manner, and it was adjudged to be a good Will and Devise of his Land. Ahr. Moor Rep. p. 63. pl. 299. west's Case.  
53. If the Testator being of sane Memory, desire another person to set his Hand and Seal to his Will for him, and he does so; this is a good Will, though the Testator did it not himself. Pasc. 1650. B. R. Styles Regest. Practicale p. 358.  
54. If a Parol Will be put in writing, and is afterwards embezzled, lost, or destroyed; yet the Will is not thereby destroyed, if it can be proved by Witnesses: but if it come in question, whether a Will be good or not, in such Case proof doth not avail; for matter of Law is to be decided by the Judges, and not by Witnesses nor Juries: Ad quaestionem Facti non respondent Judices, Ad quaestionem Juris non respondent Juratores. Hill. 22 Car. 1. Pasc. 24. Car. 1. B. R. Styles Regist. pract. p. 357,358. Cowel on Litt. fol. 155. b.  
55. If a Testament bear date at Cane in Normandy, and be proved in England, it is good enough for the Executor to bring an Action upon. Perkins, numb. 494.  
56. Note that a man may die partly Testate, and partly Intestate by the Laws of this Realm, though it's contrary to the Civil Law: and this he may do, not only in respect of time, but also in respect of goods and place: for if a man have goods in divers Dioceses, he may make Executors of his goods in one Diocese, and die Intestate as touching his goods in another Diocese; or, if a man make one Executor particularly of a certain portion of his goods, the Executor is only so far chargeable with the payment of the Debts and Legacies of the Testators, as the portion of the goods to him allotted do extend unto; and as touching the residue of the Testators goods, if there be not another Executor appointed, then for such goods he is said to die Intestate, and Adminstration may be taken of them. Bro. Executor. numb. 2. & 154. F. N. B. numb. 26. eod. Tit. Plo. ●o. fol. In Fox and Grieshies Case. Swim. part 4. sect. 18. numb. 4.   

CHAP. III.  
Who may make a Testament, and who not.  
57 EVery person, both man and woman, Christian and Jew, sound or sick, and generally of what Estate or Condition soever he or she be of, hath full power and liberty to make a Testament, or last Will, and may therein dispose of their goods and Chattels; saving such persons as be prohibited by Law or Custom, as hereafter followeth. Mich. Grass. Thesaur. come. opin. sect. Testament. Quaestio 20. numb. 1. Swim. part 2. sect. 1. numb. 1.  
58. By the Stat. 34 H. 8. Wills or Testaments made by any person within the Age of twenty one years, of any Manors, Lands, Tenements, or other Hereditaments, is not good nor effectual in the Law; for till that Age, by the Common Laws of this Realm, they are accounted Infants. 34, 35 H. 8. c. 5. Wingate Abr. Stat. Tit. Will. numb. 22. Dr. & Stud. l. 1. c. 21. & l. 2. c. 28. Swim. part 2. sect. 2. numb. 1.  
59 But a Boy of fourteen, and a Girl at twelve years of Age, by the Civil Law, may make their Wills and Testaments of their Goods and Chattels; and that not only without the authority or consent of their Curator or Guardian, but also without the authority and consent of their Parents; and though it be made but in the very last day of fourteen or twelve years, yet it is good enough; but before that age it is not good, although the Boy were a Soldier, or that the Testament were made Ad pias Causas, or with consent or authority of the Tutor. Mich. Grass. Thesaur. come. opinion. sect. Testament. Quaestio 20. Perkins, numb. 503. cowel's Instit. p. 122. Swinbor. part 2. sect. 2. num. 6, 7, 8. Noyes Max. pag. 97.  
60. Mad folks and lunatic persons, during the time of their Furor or insanity of mind, cannot make a Testament, nor dispose any thing by Will, no not ad pias causas; nay, though they come to their perfect understanding afterwards, yet this doth not make the Testament to take any effect, which was made during such Furor: but if these mad or lunatic persons have clear or calm intermissions, then during such time, they may make their Testament, and appoint Executors, and dispose of their Goods at their pleasure; and the Furor going before the making of such Testament shall not prejudice it. Reformat. Leg. Ecclesiastic. Tit. de Testament. cap. 7. Pacis consultum, p. 80. Mich. Grass. Thesaur. come. opin. sect. Testam. Quest. 2. 17. Swim. part 2. sect. 3.  
61. Also if a man of sound memory, who was never taken with any Lunacy or Insanity of mind, do make his Testament of his Goods or Lands, and afterwards is taken with Lunacy or Insanity of mind, a little before his death (which often happens through the extremity of their sickness) yet this doth not hurt the Testament which was made before: or if a lunatic person, or one that is besides himself sometimes, make his Testament, and it is not known whether the same were made when he was of sound mind or no; in this Case, if no Argument of Frenzy or Folly appear in the same, than it shall be conceived to be made in his calm Fit, and so adjudged a good Testament. But on the contrary, if any Folly appear in the same, though it be but two or three words, as if he say, ● Peter, when his name is John; than it makes the Testament void, as being presumed to be made during the insanity of mind. Mich. Grass. Thesaur. come. opin. sect. Testam. Quest. 21. Vasque de success. progress. lib. 1. sect. 1. num. 90. See Co. 4. lib. Rep. fol. 61. Swim. part. 2. sect. 3. num. 4. 14, & 15.  
62 Note that every person is presumed to be of sound mind, unless the contrary be proved; and therefore those that intent to make void a Testament by reason of insanity of mind, must prove the same impediment; and if it be proved that the Testator was beside himself before the making of the Testament, although they do not prove him to be mad at the very time of making the Testament, yet it is sufficient, and it lies on the Executors part to prove that the Testator was of sound mind, not only to answer to ordinary and usual questions, but that he had a disposing memory, and was able to make his Devises and Bequests with understanding and reason, at the time of making his Testament. Franeisc. Mantica de conject. ult. volunt. l. 1. Tit. 5. Maschard. de Probat. verb. Furiosum, Conclus. 824. numb. 10. Vide 41 Eliz. B. R. in Marquis de Winchester's Ca Co. 6. Li. fo. 23. Swim. part 2. Sect. 3. Num. 6, 7.  
63. An Idiot or Natural Fool, that cannot number Twenty, nor tell his Age, nor is able to answer to any ordinary and usual Question, nor knows what is for his advantage or damage, though it be notorious, nor is apt to be instructed or informed by any other; such an one cannot make a Testament, nor may dispose either of his Lands or Goods. F. N. B. de Idiota inquirendo. 34 H. 8. c. 5. cowel's Inst. p. 123. Simo. de Praetis. de Inter. ult. volunt. lib. 2. dub. 1. fol. 4. Swim. part 2. sect. 4. num. 1, 2.  
64. But if a man be of a mean understanding, between a Wiseman and a Fool, such an one may make his Testament; unless he be so simple, as that one may persuade him to believe things impossible, as that an Ass can fly, or that in old time Trees did walk, and Birds speak, or the like. Simo. de Praetis. de Inter. ult. volunt. lib. 2. dub. 1. fo. 4. Swim. part 2. sect. 4. num. 3, 4.  
65. A Married woman cannot make her Testament of any Manors, Lands, Tenements or Hereditaments, by the Statute of 34 H. 8. neither can she make a Testament of Goods or Chattels without her Husband's licence; except she be a Queen or Empress, or that she were Executrix to some other person: for in such case she may make her Will of such Goods as she hath as Executrix, without his licence; and name her Executor, who shall have them to the use of the first Testator; but she cannot give them away as a Legacy: and if she die without Will, yet in such case, such goods as she had as Executrix (of which the property is not altered) shall not go to the Husband, but Administration thereof shall be committed to the next of kin of the first Testator. But in both these cases, the Husband shall have the Profits arising of the same, as Calves, Lambs, and suchlike profit of Kine and Sheep. Also if the Wife have Goods by way of Legacy from another person, in such case she cannot make a Testament, or dispose of the same, without his licence. Note, though the Husband do give licence to the Wife to give away part of his goods, yet notwithstanding he may countermand her Testament again, either before or after her death, or at least before the Probate thereof. But if the wife make her Testament of his Goods, and the Executors prove the same, and the Husband delivers the Goods to the Executors; then he cannot countermand the Testament, though the wife made it without his licence or knowledge: for by this after-act the Law presumes he gave consent at the first. 34, 35 H. 8. c. 5. Bract. l. 2. c. 26. Bro. Devise 34. Testament 21. Executor 11. & Administrator 45. Perkins num. 501 & 502. Noys Maxims p. 97. Mich. 2 E. 2. Devise 14. F. N. B. tit. Executor, num. 10. Swim. part 2. sect. 9 Plo. come. fol. 525. cowel's Inst. pa. 124.  
66. A Slave or Bondman cannot make a Testament or Will, for that all he hath is his Lords, and he can dispose of nothing. Bract. l. 1. C. 9 num. 3. Fleta li. 1. C. 5. sect. 7. num. 3. & cowel's Inst. pa. 16.  
67. But if a Villain make a Testament, it is not absolutely void, but voidable: for if the Lord enter, and seize the Villains Lands and Good● before probate of the Will, it make● the Devise void; or if he claim the Villain in his life-time, and seize the Goods by word only, it makes the Devise void. But if neither of these were done by the Lord, before the Executors prove the Will and seize the Goods, than the Testament of the Villain is good in law against the Lord; except it be in case of the King: for if his Villain give or sell his Goods, the King may seize them at any time; for, Nullum tempus occurrig Regi. Also if a Villain have Goods as Executor to another person, he may make a Testament thereof, and appoint an Executor to the first Testator, who shall have the said Goods, and not the Lord of the Villain. Bro. tit. Villeinage, 50, 68, 73. Dr. & Stud. li. 2. C. 43. Littleton's Tenors, li. 2. C. 11. & Swim. part 2. sect. 7.  
68 A man that is taken captive by those who are open enemies to the King, cannot make a Testament during his captivity: for if he do, though he should escape afterwards, and then die, yet such Testament is void: but if he had made a Testament before he was taken, and then afterwards escape; or though he die during his Captivity, yet in both cases the Testament is good; and so it is if he be taken by those who are not proclaimed enemies, and during his captivity he makes his Testament: or if a man who is imprisoned for Debt do make his Testament during his imprisonment, it is good, unless it be made in favour of those at whose Suit he is imprisoned. Mich● Grass. Thesaur. come. opin. sect. Testament, Quaestio 25. Franc. Mant. d● conject. ult. Volunt. li. 2. tit. 7. num▪ 2. & Bract. li. 2. C. 16. num. 5. Swim part 2. sect. 8.  
69. One that is born Deaf an● Dumb, if it appear by sufficient Argument that he understands what 〈◊〉 Testament is, may be signs make 〈◊〉 Testament; and so may any on● that could have spoken and hear● formerly, and is become deaf an● dumb by some accident: or if such person can write, than he may writ● his Testament with his own hand 〈◊〉 and so likewise may one do that ca● hear, but cannot speak: and if h● cannot write, than he may do it by signs and tokens: and one that ca● speak, but cannot hear, may als● make his Testament, and devise hi● goods to whom he pleases. Refor. leg. Eccles. tit. de Testam. C. 7. Swim. part 2. sect. 10.  
70. But one that is born both deaf, dumb and blind, cannot make a Testament or Will, because he hath no understanding. Finches law, li. 2. C. 2. pa. 103. Perkins numb. 25.  
71. One that is blind may make a Nuncupative Testament, by declaring his Will before a sufficient number of witnesses: but he cannot make his Testament in writing, unless the same be read before witnesses, and then acknowledged by him to be his last Will and Testament: for if he should acknowledge a writing for his last Will, and do not hear it read, this will not make it amount to a Will in writing. Swim. part 2. sect. 11. & num. 1, 2.  
72. He who is lawfully convicted of High-treason, by Verdict, Confession, Outlawry or Presentment, cannot make his Testament, or dispose of any Goods, Lands, Tenements or Hereditaments; nay, though he have made a Testament before such conviction, yet the same is void: but if he afterwards obtain the King's pardon, than he may make a Testament; or if he have made one before conviction, then after such pardon the same becomes good again▪ cowel's Inst. pa. 123. 5 E. 6. C. 11. Swim. part 2. sect. 12.  
73. He who is indicted of Felony at the King's suit, and will not plead to the Indictment, but stands Mute, shall be pressed to death, and forfeits all his Goods, but not his Lands; and so it is said he may in such case make his Testament of his Lands. Swim. part 2. sect. 13. num. 5. Dr. & Stud. li. 2. C. 41. Pulton de pace Regis, fo. 216.  
74. Those who are indicted and lawfully convicted of such Crimes as are Felony, (as Petty Treason, Murder, Homicide, Chancemedly, Burglary, Robbery, Theft, Buggery, Rape, etc.) after their conviction can make no Testament, nor dispose of any Lands, Goods or Chattels of their own; nay, if they have made a Testament before, such conviction makes it void, unless they procure the King's pardon, and be restored to their first condition again: but if one be attainted of Felony only, he may give away his goods by Deed of Gift, or sell them, before Judgement be pronounced; but for Lands, the Law takes notice from the time of the fact committed and comprised in the Indictment; but it is otherwise in case of Goods and Chattels. Mich. Grass. Thesaur. come. opin. sect. Testament, Quaestio 26. Dr. & Stud. lib. 2. C. 41. Bro. forfeiture, 5, 28, 65 89, 103, 113, 117. Swim. part 2. sect. 13. Stamf. 192. 33 E. 3. tit. 20. Perkins num. 29, 41. Ass. pl. 31. cowel's Inst. pa. 123 & 124. Dalton foe 292. C. 110. Vide Co. on Lit. sect. 745. Rastal, Forfeiture 7. Wingate Abr. Stat. eod. titulo, num. 5 & 8. Stat. de catal is Felonum, & 1 R. 3. c. 3. Paseh. 8 E. 4. fo. 4. a. Kitchen Court-leet, foe 42. a.  
75. By our ancient Law, an Heretic could not make a Testament (after convictian) of his goods and chattels: and if he were delivered over to laymen's hands, than he forfeits his Lands also. But see now the Statute of 1 Eliz. c. 1. for by that Statute, the 2 H. 5. c. 7. which gave Forfeiture of goods and lands in case of Heresy, stands now Repealed; so that we have nothing in certain now, but what we receive from the Canon-law. A Relapse into Heresy after Recantation, is fatal. Mich. Grass. thesaur. come. opin. sect. Testam. quaest. 24. cowel's Inst. p. 124. Swim. part 2. sect. 14. Dr. & Stud. li. 2. C. 29. 2 H. 5. C. 7. 1 Eliz. C. 1. Co. 3 part Inst. fo. 43. C. Heresy. Reformatio Leg. Ecclesiasticum, tit. de Test. c. 7.  
76. He who hath been condemned, or publicly confessed himself to be a manifest Usurer, and publicly uses the same Trade, and hath exacted above Ten pounds in the Hundred for the loan or forbearance of an Hundred pounds for one year, cannot make a Testament of his Goods and Chattels, unless he satisfy or make restitution for the same in his life-time, or enter caution for satisfaction to be made after his death. Menoch. de Arbit. Judic. li. 2. casus 235. Swim. part 2 sect. 16. Fleta li. 2. C. 50. cowel's Inst. pa. 124. Mich. Grass. thesaur. come. opin. sect. Testament, quaest. 33. 13 Eliz. c. 8. Refor. Leg. Eccles. tit. de Testamentis, c. 7.  
77. If one make a Testament of his goods or , and afterwards wittingly and willingly kill or hang himself; then such Testament is void; for his goods and chattels real and personal are all forfeited to the King, and all debts due to him by Specialty, but no debts due to him without Specialty, or upon Simple contract. Stamf. pl Coronae, li. 1. c. 3. Bract. li. 3 c. 2. cowel's Inst. pa. 124. Swim. part 2 sect. 20. Co. 3 part Instit. fo. 54. 3 E. 3 Coron. 301. 8 E. 2. Coron. 420. Pasch. 8 E. 4. fo. 4. a. Dyer foe 262. Daltons' Just. fo. 236. c. 92.  
78. If one who is Outlawed in a Personal Action, make his Testament of his goods, and the Executors prove the Testament, and afterwards sue the Debtors of the Testator, who plead Outlawry in the Testator as a Bar; this hath been held as no good Bar, so that before seizure they may sue: but if the King seize the goods as forfeited, though he give them back again to the Executors, yet they shall not be Assetts in their hands to charge them with any debts or Legacies of the Testators. Trin. 37 Eliz. C. B. Rot. 1306: Woolly and Bradwels' case. brownlow's 1 part Rep. fo. 55. Mich. 20 Jac. C. B. Bullen and Gervise case. Huttons Rep. fol. 53. Dr. & Stud. li. 1. c. 6.  
79. He who is so excessively overcome with drink, as that he is utterly deprived of the use of Reason and Understanding, at such time cannot make a Testament: but if he be not clean spent, albeit his Understanding be a little darkened and obscured, and his Memory troubled, yet he may make his Testament in that case. Simo. de Praetis. de Inter. ult. Voluntat. li. 2. dubium 1. solut. 4. num. 22. Swim. part 2. sect. 6.  
80. Archbishops, Bishops, Deans, Archdeacon's, Prebendaries, Parsons, Vicars, and other Ecclesiastical Ministers or Clergymen, may make their Testaments of all such goods and chattels as they severally enjoy in their own right, and not in the right of their Churches and Ecclesiastical Live. Perkins num. 496, 497, 498 28 H. 8. c. 11. Mich. Grass. thesaur. come. opin. sect. Testament quaestio 34. cowel's Inst. pa. 125. Swim. part 2. sect. 26. Dr. & Stud. li. 2. c. 39  
81. The King, however in a capacity to make a Will, cannot make a Testament, and thereby give away his Kingdom and Crown-Jewels or Regalia from his lawful Heirs to another. Fitz. Abr. Devise 5. Ex. 108 cowel's Inst. pa. 125. Swim. part 2. sect. 27.  
82. The Queen of England is an exempt person from the King, and may make a Testament; and is of ability and capacity to grant, and to take, to sue and be sued, as a feme sole by the Common Law. Co. on Lit. foe 134. sect. 200. Finches law, li. 2. c. 1. p. 86. Co. 4 lib. foe 23. in Clark and Penny●●●hers Case.  
83. When one is grown so old, as that he is become a Child again in his understanding, and is deprived not only of Reason, but also of Sense almost; or grown so forgetful, (through Age or other infirmity) that he hath forgotten his own Name; such person can no more make a Testament than a Child. Fran. Mantica de conject. ult. Volunt. l. 2. tit. 15. num. 16. Simo. de Praetis. de interp. ult. Volunt. li. 2. dub. 1. sol. 4. num. 22. Swim. part 2. sect. 5.  
84. An Excommunicate person may make his Testament; unless he be excommunicate for Heresy or manifest Usury, or some other cause for the which he is prohibited to make a Testament; or unless he be excommunicate with that great Curse which is called Anathema, and is not inflicted but upon great cause. Swim. part 2. sect. 22. Mich. Grass. thesaur. come. opin. sect. Testament. quaestio 24.  
85. By the Civil Law, such as marry within the Levitical degrees, and prohibited to marry by God's Law, cannot make a Testament, or dispose of any goods or chattels to their children begotten in such Incestuous Marriage; unless it be so much only as will serve for their competent sustentation or maintenance; or that they be appointed but bare Executors, without any other benefit: or if the Parents were ignorant of the impediment of such Consanguinity or Affinity, than the children born during such ignorance, by the Ecclesiastical Canons are capable of all Legacies, and all manner of Testamentary benefits, as legitimate, albeit the parents afterwards should be divorced. Observe also, that as the incestuous persons aforesaid cannot make a Testament, or dispose of any goods to their incestuous children: so neither can they devise their goods to any other, except it be to their parents, or brother or sister, or uncle or aunt, or to such children as were begotten in lawful Marriage by a former wife, if they had any.  
86. Several other persons there are who fall under Ecclesiastical censures, and are prohibited by that Law to make a Testament; but being that they are not deprived of this privilege by our Common or Statue-Laws (which limit the power of the Ecclesiastical Courts within this Kingdom) I shall omit therefore to mention them; and so conclude this Chapter.   

CHAP. IU.  
Who may be an Executor, and who not.  
87. NOte, that every person may be an Executor, and is capable of a Legacy; saving such persons as are prohibited by Law: yea, in some cases those who cannot make a Testament or Will, may be Executors; as a child in the mother's womb, an Infant, a Married woman, a Bondman or Villain; and in such case the Villain may have an Action against his own Lord, if he were indebted to the Testator. Lit. lib. 2. c. 11. Bro. Abr. tit. Villeinage 68 & tit. Executor. cowel's Inst. p. 129. Glan. lib. 7. c. 6. Old Tenors, tit. Villeinage. Fra. Mantica de co●. ult. Volunt. li. 4. tit. 8. Swim. part 5. sect. 1.  
88 And if the Testator make his own Villain Executor, he doth thereby manumit and free him from Bondage. cowel's Inst. p. 13. Bract. l. 4. C. 21. Co. on Lit. foe 136.  
89. Note, that if he who is named Executor be an Apostata, or an Heretic, either at the time of the making the Testament, or at the time of the death of the Testator, or at the time when he would undertake the Executorship; in all these cases he is to be excluded, by the Civil Law. Sichard. in Rubr. de Haered. Instit. C. num. 5. Mich. Grass. thesaur. come. opin. sect. Instit. quaest. 28. Swim. part 5. sect. 2, 3.  
90. He who is convicted of Treason or Felony, is incapable of an Executorship or Legacy: but if he were attainted of Felony, and afterwards admitted to his Clergy, than he may be an Executor, etc. Mich. Grass. thesaur. come. opin. sect. Inst. quaest. 5. Labrig. des Cases edit. anno Dom. 1599 fo. 180. num. 13. Swim. par. 5. sect. 4.  
91. An Outlawed person, so long as he standeth in that case, is not to be admitted to the Executorship, nor can sue for his Legacy: but though the Ordinary do not admit him, yet if he shall Administer as Executor, because it is to the use of another, it is held to be good in Law. But if the Testator bequeath the residue of his goods, or some Legacy, to the Executor being an Outlawed person, the same is forfeited and confiscate by force of the Outlawry. Dr. & Stud. li. 1. C. 6. & li. 2. C. 3. Labrig. des Cases edit. anno Domini 1599 tit. Execut. fol. 179. Swim. part 5. sect. 5.  
92. An unlawful College (that is, such Companies, Societies, Fraternities, and other Assemblies whatsoever, not confirmed nor allowed by Authority for a lawful Corporation) cannot be Executor. See afterwards num. 99 Perkins sect. 505 & 510. 9 H. 6. fo. 23. Swim. part 5. sect. 9  
93. Libelers, manifest Usurers, Sodomites, and other criminous persons, who are forbidden to make a Testament, can receive no benefit by the last Will or Testament of another person: for it is a common received Conclusion, That he that cannot make a Testament or Last Will, by reason of some Crime by him committed, the same person is incapable of any Legacy of goods disposed by the last Will or Testament of another. Jul. Clar. sect. Testament, quaest. 43. num. 2. Vasq. de success. progress. li. 1. sect. 2. num. 18. Swim. part 5. sect. 10, 11. Reformat. leg. Eccles. tit. de Test. cap. 14.  
94. A Recusant convicted at the time of the Testators death, or at the time of granting Administration, cannot be Executor nor Administrator. Wingate Abr. Stat. tit. Crown, num. 134, 141. 3 Jac. c. 5.  
95. If the Testator intending to make John at Style Executor, say, I make John at Noke my Executor; in this case neither of them is to be Executor: for John at Style is excluded, because the Testator never spoke it; and John at Noke is excluded, because the Testator never thought it. Swim. part 7. sect. 5. num. 2.  
96. Or if the Testator say, I make my cousin John at Style my Executor, if John at Style be not his cousin, he cannot be Executor, unless the Testator were wont commonly to call him cousin. Michael. Grass. the saur. come. opin. sect. Instit. quaestio 9 num. 4. Swim. part 7. sect. 5. num. 4.  
97. Also if the Testator say, I make John at Style my Executor, and there is two of that name, neither of them shall be admitted; unless one of them were of the Testators familiar acquaintance, or his kinsman, and the other a stranger; for in such case the stranger shall be excluded, and the other admitted. Simo. de Praetis. de Interpretatione ult. Volunt. l. 1. fo. 97. num. 1, 3, & 100 Fran. Mantic. de conject. ult. Volunt. li. 8. tit. 4. num. 5. Swim. part 7. sect. 8.  
98. And if both of them be of the Testators acquaintance, or both of them kinsmen; then he which is of the greater acquaintance, or nearer of kin, shall be admitted, and the other excluded: and in such case, he shall be judged to be nearest of kin, to whom Administration should have been committed if the Testator had died Intestate. Fran. Mantica de conject. ult. Volunt. li. 4. tit. 6. num. 3, 4. Simo. de Praetis. de interp. ult. Volunt. li. 1. fo. 96. num. 9 Swim. part 7. sect. 8. num. 3, 4.  
99 If the Testator make the Poor his Executors, giving them the residue of his goods, this disposition is not void by reason of incertainty, because it is a Testament ad pias causas. By the Poor therefore is understood the Poor of the Parish where the Testator did dwell and keep house; and the Ordinary is to take care that the Poor have their due, according to the meaning of the Testator. Also, if the Testator bequeath any goods or money to the Parishioners of any Parish, to the use of the Church; such a Bequest is good, and the Legacy may be recovered by the Churchwardens, who albeit in every respect they be not a lawful Corporation, yet in this respect, in favour of the Church, they are accounted a lawful Corporation. And where it is said that unlawful Colleges or Companies, etc. (not Incorporated by the King's Authority) cannot be Executors; yet in such case, if the several and particular persons, by name of an unlawful College, etc. be appointed Executors, they are not to be repelled. Franc. Mantica deconject. ult. Volunt. li. 8. tit. 5. num. 2. ●iraquel. tract. de privileg. piae causae, privileg. 56. Lambert Tract. de Officio Gardianarum, fo. 43. Bro. tit. Corporation, num. 55, 73, 77, 84. Fulb. li. 1. fo. 42, 43. Swim. part 7. sect. 8.  
100 If the Testator make his own kin his Executors, in this case those of kin who are nearest to him, and should have had the Administration if the Testator had died Intestate, shall be first admitted, and enjoy the Executorship during their lives; and after their deaths, than the other next of kin to the Testator is to be admitted successively one after another, and not all together: but if the Testator make another man's kindred his Executors, in such case they are all to be admitted together to the Executorship. Simo. de Praetis. de interp. ult. Volunt. li 3. fo. 91. num. 28. Mich. Grass. thesaur. come opin. sect. Instit. quaest. 20. sect. Fidei commiss. quaestio 16. & sect. Legat. quaest. 41. Swim. part 7. sect. 8. num. 10.  
101. Where the Testator makes the next of his kin his Executor, and dies without issue of his body; in this case the father or mother, if living, shall have the Executorship, as next of kin to their son; contrary to the Judgement given in the 5 E. 6. in the Duke of Sussolk's Case, which Case is now overruled, and not held for Law. Co. 3. lib. foe 40. in Ratcliff▪ s Case there. cowel's Inst. p. 40. Trin. 22 Car. 1. B. R. Styles Regestum practicale, p. 21. Swim. part 7. sect. 8. in fine.  
102. If the Testator say, I make A or B my Executors; in this case it is all one as if he had said, I make A and B my Executors: unless it be where the Testator bears more affection to the one then to the other; and then he which he bears most affection to, shall be preferred: as, where the Testator makes his brother or John at Style his Executors; in this case the brother shall be first admitted; and after his death, than John at Style (if he be living) shall be admitted. Also, where one of the persons so named is incapable, than the dis-junctive standeth properly, and the other shall be admitted alone to the Executorship. Jul. Clar. sect. Testament, quaest. 80. num. 5. Swim. part 7. sect. 9  
103. An Excommunicate person, so long as he standeth in the Sentence of Excommunication, is not to be admitted to an Executorship by the Ordinary; nor can he commence any Suit there for his Legacy. Michael Grass. thesaur. come. opin. sect. Institutio, quaestio 4. Swim. part 5. sect. 6.  
104. Bastards begotten and born in Adultery or Incest, are not capable of any benefit by the Testament or Last Will of their Incestuous or Adulterous parents; except there be only so much bequeathed, as will suffice for their competent Alimentation or Relief, that is to say, for their Food, Clothing, Lodging, and other meet and convenient necessaries, according to the degree and ability of their parents; or that it be in case of Lands, Tenements, and Hereditaments; for there a man may by his Testament or Will in writing devise to his Bastard all his Lands, Tenements or ●ereditaments; and such Bastard may sue for the same, and recover them: and so it was adjudged in the Lady Griffins Case, upon the Testament of Sir Francis Wortly, who devised all his Lands to his base daughter. Mich. 18 Car. 2. B. R. Mich. G●●ss. thesaur. come. opin. sect. Instit quaest. 7. Gabr. come. Conclus. li. 6. tit. de Aliment. conclusio 1. num. 5 & 31. Menoch. praesump. li. 4. praesumptio 157. num. 3. 32 H. 8. c. 1. Brac. li. 2. c. 7. Swim. part 2. sect. 17. & part 5. sect. 7.  
105. Note also, that these incestuous or Adulterous Bastards may be Executor to any other person, saving to their natural parents, and are capable of a Legacy bequeathed to them from any other person; yea, even to their own Incestuous or Adulterous brethren they may be Executors, or receive any other Testamentary benefit from them. Jul. Clar. sect. Testament, quaestio 31. num. 4. Swim. part 5. sect. 7.  
106. Also where they are appointed but only bare and nude Executors, and receive no benefit by the Testament; in such case they be admitted Executors to their own natural parents. Simo● de Praeti●. de interp. ult. Volunty li. 5. fo. 17. num. 27. Swim. part 5. sect. 7.  
107. The Adulterous Grandfather may bequeath any thing to the lawful children of his own unlawful sons or daughters, or make them his Executors: but so cannot the Incestuous Grandfather. Covar. in D. cap. 8. the Sponsal. part 2. sect. 5. num. 13. Bald. C. de Incest. Swim. part 5. sect. 7.  
108. Several other persons there are, who by the Civil and Ecclesiastical Laws are prohibited Testamentary benefits; but being that I find little or no mention made of them, either in our Common or Statute-Laws, (which limit the power of those Spiritual Courts here in England) I shall therefore pass them over in silence, and proceed to the next Chapter.   

CHAP. V.  
Of the several ways of appointing a● Executor.  
109. TO name or to appoint one as Executor, is to place one in stead of the Testator, who may enter to the Testators goods and chattels, and have an Action against the Testators Debtors, and may dispose of the same goods and chattels towards the payment of the Testators Debts, and performance of his Will: which if he neglect to do, he may be sued by the Creditors or Legataries, so long as he hath Assetts in his hands. Noys Max. p. 101. Terms of the Law, verb. Executor. Swim. 4. sect. 2.  
110. Now this naming or appointing an Executor is the head of the Testament; and as the body is dead that lacketh an head, so the Testament is as it were dead that lacketh an Executor; for it is the foundation of the Testament; and no Testament can stand without it, or be called a Testament: and though there be never so many Legacies or Devises given therein, yet it is but a Codicil or Will, and not a Testament; and the Administration of the goods, with such Codicil or Will annexed, shall be committed to the next of kin of the party deceased, as of one dying Intestate. Justin. Instit. l. 2. tit. de Legacies, N. 34. Swim. part 4. sect. 2.  
111. But if an Executor be named; though no Legacy be left, or Devise made, yet such disposition is a Testament, whether the same be Solemn or Unsolemn, Written or Nuncupative, Privileged or Unprivileged: and in this case the Ordinary cannot commit the Administration of the dead man's goods, as of one dying Intestate, if such Executor be capable and willing to undertake the Execution of the Testament. Bro. Abr. tit. Execut. F. N B eod. tit. Swim. part 4. sect. 2.  
112. And as to the appointing of an Executor, it may be done either simply or conditionally; or from a certain time, or to a certain time; or universally, or particularly; or in the first, second, third, or fourth degree, &c▪ and ●●stly, one or divers may be appointed Executors. Bro. tit. Executor, N. 2, 9, 13, 24, 38, 117, 155. Dyer fo. 3. cowel's Inst. p. 129.  
113. If the Testator say, I make A B my Executor, or, I institute A B my Executor, or, I will that A B be my Executor, or, I desire A B to be my Executor, or, A B shall be my Executor; these and suchlike words make a simple nomination of an Executor, where no condition is annexed by the Testator: and it is not material in what part of the Testament the Executor is appointed; for the Law regardeth not so much the form or the words, as the meaning of the Testator. Mich. Grass. the saur. come. opin. sect. Legatum, quaestio 43. N. 2. & sect. Institutio, quaestio 1 & 14. Swim. part 4. sect. 4. num. 2, 3, & 11.  
114. Therefore if the Testator say, I commit all my goods to the disposition of A B; or, I commit my soul and all my goods to the hands of A B; or, I make A B Lord of all my goods; or, I make my wife Lady of all my goods; or, I leave all my goods to A B; or, I make A B Legatary of all my goods; or, I leave the residue of all my goods to A B: in these cases it is presumed that such person is intended to be made Executor, by the Testator: for it is not always necessary to express the word Executor, neither hath every Testator skill so to do: therefore if the Testator write after this manner: In all my goods movable and unmoveable I make A B, though the Testator do not add Executor, yet it is to be understood and supplied Bro: tit. Executor, 98. Mich. Grass. Thes. come. opin. sect. Instit. quaestio 14. Swim. part 4. sect. 4. num. 4, 5. Franc. Mantica de conject. ult volunt. li. 4. tit. 3. num. 5 & 8.  
115. If the Testator say, I make A B my Executor, if C D will not; in this Case C D is presumed to be Executor, and may be admitted, if he please, and exclude the other. Or, if the Testator supposing his Child or Friend to be dead, say in his Will, Forasmuch as my Child or Brother is dead, I make A B my Executor: In this case, if the Child or other Person be alive, whom the Testator imagined to be dead, than he that is named Executor shall not be admitted to the Executorship, but the Child, or other Person, whom the Testator thought to have been dead. Franc. Mantica de conject. ult. volunt. li. 4. tit. 4. Swim. part 4. sect 4. num. 6.  
116. When the Testator doth add something to the assignation of an Executor, whereby the effect of the disposition is hindered or suspended, and dependeth upon some future event, than such assignation of an Executor is conditional: and there are divers words whereby the disposition of the Testator is made conditional; as if, when, while, whensoever, wheresoever, and several other, etc. M●●h. Grass▪ Th●s come. opin. sect. Legatum, quaestio 46. Franc. Mantica de Conject. u●t. volunt. li. 10. tit. 5.  
117. And as there are divers words which make a conditional disposition, so there are divers sorts and divisions of conditions; whereof some necessary, some impossible, some possible or indifferent: when the condition is extreme, that is to say, either necessary or impossible; such a condition hindereth not the Executor o● Legatary, but that he may be admitted to the Executorship, or recover the Legacy, as if such condition ha● not been at all expressed. Justin ●●s●it. li. 2. tit. de Heredibus Instituendis, num. 10. Swim. part 4. sect. 5. num. 4▪ & sect. 6 num. 2.  
118. But when the condition is not extreme, but indifferent or possible, than it must first be fulfilled, before the Executor be admitted, or the Legatary recover his Legacy: but there are divers limitations to both these Rules, as will appear by the several cases hereafter mentioned in this Chapter. M●●h. Grass▪ Thesaur. come. opin. sect. Legat. quaestio 52. Swim. part 4. sect. 6 num. 4.  
119. If the Testator make A B his Executor, or give him an hundred pounds, if, or when his Son dies; here the Executor or Legatary cannot obtain the Executorship or Legacy till such a thing happen, but must wait the event of the condition. Paul. de Castr. in li. extraneum, li. 1. cap. de Hered. Instituendis. Swim. part 4. sect. 6.  
120. If the Testator make A B his Executor, or give him an hundred pounds, if he marry his the Testators Daughter, supposing her to be living, whereas she is dead; in this case, though the condition be impossible, yet because the Testator did think her to be living, and therefore the condition possible, A B in this case cannot be Executor, nor obtain the Legacy: Or, if the Daughter were living, but died before Marriage, in such case it is all one; but if she were living, and afterwards did refuse to marry, yet notwithstanding A B might be admitted to the Executorship, or obtain the Legacy. Franc. Mantica de conject. ult. volunt. li. 2. tit. 16. num. 23. Menoch. de praesumpt. li. 4. fol. 706. num. 40. Swim. part 4. sect. 6. num. 9, 14, 15.  
121. But if the Testators Daughter were willing afterwards to marry with A B, before he have obtained the Executorship or Legacy, and then he refuseth her; in this case he ought not to be admitted to the Executorship, or obtain the Legacy, unless after her refusal at first, and before her willingness he be married to another woman, or have obtained the Executorship or Legacy, and is possessed thereof; for than her repentance comes too late. Franc. Mantica de conject. ult volunt. li. 11. tit. 18. num. 30, 38. Menoch. de praesumpt. li. 4. fol. 183. num. 29. Swim. part 4. sect. 10.  
122. Also if the Testator make A B his Executor, or give him 100 pound if he marry his Daughter, and he refuses to marry her; here he cannot be admitted to the Executorship, or obtain the Legacy, although afterwards he be willing to marry her, and then she will not marry him; unless that at such time when he refused, he were not of sufficient age to marry: for his dissent at that time, when he could not consent, doth not ●inder him, nor is it a breach of the condition. Mich. Grass. thesaur. come. opin. sect. Legatum, Quaestio 46. num. 16. Menoc. de Praesumpt. li. 4. fol. 1698. num. 22. Swim. part 4. sect. 8.  
123. If one make A B his Executor, or give him 100 pounds, if he erect a Monument within three days after the Testators death: in this case, if the Executor or Legatary do perform the same with as much speed as is possible, it is sufficient, though it was not done within three days. Swim. part. 4. sect. 6. num. 11.  
124. If the Testator charge his Executor, to whom he hath given all the residue of his Goods, That if he do not touch the Sky with his finger, or kill his Father, to pay then to A B 100 pounds: in this case he is not bound to the performance, for such Legacy to A B is void. Reformatio Legum Eccles. tit. de Testamentis, C. 15. pag. 135. Swim. part 4. sect. 6. numb. 12.  
125. Where the Testator makes thee Executor, or gives thee 100 pounds, if thou pay 10 pounds to C D before a certain time; within which time C D dyeth, and then thou payest the 10 pounds within the time to his Executor, or Administrator▪ in this case, because thou didst not pay the 10 pounds to C D himself, thou canst not be Executor, no● obtain the Legacy. Franc. Manti●a de conject. ult. velunt. li. 11. tit. 17. num. 25. Swim. part 4. sect. 7.  
126. But if thou be made Executor, or 100 pounds is bequeathed to thee, if thou pay unto the Testators Son (being an Infant) 10 pounds; in this case, if thou pay to the Child's Tutor, it is a sufficient performance of the condition. Mich. Grass. thesaur. come. opin. sect. L●gatum, quaestio 52. Francise. Mantica de conject. ult. volunt. li. 11. tit. 17. num. 29. Swim. part 4. sect. 7.  
127. Also if the Testator make thee Executor, or give thee 100 pounds, if thou go to Church on Easter-day; and when the day comes thou art willing to go, but a●t not able to do it, by reason of overflowing of waters, or some other necessary impediment: in this case notwithstanding thou shalt be admitted to the Executorship, and mayst recover the Legacy, as if thou hadst gone to the Church that day: but if at the day thou wert going to the Church, and by the way committest some crime, whereupon thou art arrested and stayed; in this case thou shalt not be admitted to the Executorship, nor recover the Legacy, because thou wert the cause thyself wherefore the condition was not performed, and the other was Actus Dei. Mincing. in sect. penult. Inst. de Haered. num. 2. Franc. Mantica de conject. ult. Volunt. li. 11. tit. 16. num. 24. Swim. part 4. sect. 8.  
128. If the Testator make thee Executor, or give thee 100 pounds if thou marry his Daughter within a Month; and another person doth hold her purposely from thee, that thou canst not marry her within the time; yet in this case the condition is reputed to be performed by reason of thy willingness, and thou mayst obtain the Executorship or Legacy: but if such person doth not detain her purposely, but is ignorant of the Testators Will, then in such case the condition is not taken to be performed. Franc. Mantica de conject. ult. Volunt. li. 11. tit. 16. num. 22. Swim. part 4. sect. 8. num. 19  
129. If the Testator make thee Executor, or give 100 pounds if thou bury his body within the Cathedral Church of St. Peter's in York, and the Testator afterwards dyeth Excommunicate, for which his Sepulchre is denied, so that thou canst not bury him there; yet notwithstanding, because it was not thy fault, but the Testators, thou mayst therefore obtain the Executorship or Legacy. Sichard. in li. 1. cap. de Inst. & Substitut. num. 1. Swim. part. 4. sect. 8. num. 18.  
130. If the Testator make his Wife Executrix, or give her 100 pounds if she abideth with his Children; in this case, if she enter into bond to perform the condition, or else to make restitution, she may then be admitted to the Executorship, or obtain the Legacy. Paul. de Castr. in d. li. Mutianae, sect. So●rus. Simo. de Praetes. ●e Interp ult. volunt. li. 5. fol. 42. Interp. 2. dub. 1. num. 24, 25. Swim. part. 4. sect. 9 Reformatio Leg. Eccles. tit. de Testam. cap. 31.  
131. Also if the Testator make thee Executor, or give thee 100 pounds, if thou never play at Cards or Dice, or, if thou never give away thy Lands: in such case, entering into sufficient Bonds to perform the condition, or else to make restitution, thou mayst then be admitted to the Executorship, or obtain the Legacy. Paul. de Castr in d. L. Mutianae. Simo. de Praetis. de Interp. ult. Vol. li. 5. Interp. 2. dub. 1. numb. 25. Swim. part 4. sect. 9  
132. But if the Testator make thee Executor, or give thee 100 pounds, if thou never play at Cards or Dice, or, if thou do not at any time give away thy Lands to A B; here thou canst not be admitted to the Executorship, nor obtain the Legacy, until the condition be brought into that state, that it cannot be infringed. Gloss. in d. L. Mutianae, Swim. part 4. sect. 9 num. 14.  
133. Those conditions which do impugn and hinder that liberty which every Testator ought to have by the Law in the making of his Will, are accounted unlawful; therefore if the Testator make thee his Executor, or give thee 100 pounds if thou shalt make him thy Executor, or give him 100 pounds in thy Testament; or, if the Testator make thee Executor, or give thee 100 pounds, if A B will; or, if the Testator make such a person Executor, or give him 100 pounds whom thou wilt appoint: in these cases, though thou name one to be Executor, or, that A B will that thou be Executor, or have the Legacy; yet thou shalt not be admitted to the Executorship, nor have the Legacy, because by such means that free liberty which every Testator ought to have in the making of his Testament might be taken from him, and he deprived of that privilege; therefore such dispositions are said to be captious. Sichard. in li. Captorias, c. de Mil. Test. num. 6. Mich. Grass. thesaur come. opin. sect. Inst. quaestio 18. Swim. part 4. sect. 11.  
134. But if the Testator make thee Executor, or give thee 100 pounds, if A B shall esteem it convenient; in this case, if A B esteem it convenient thou be admitted Executor, or have the Legacy of 100 pounds, than thou art to be admitted to the one, or mayst obtain the other: or, if the Testator make one of his Servants his Executor, whom thou shalt choose; in this case him whom thou shalt choose of the Testators Servants, shall be Executor. Note the diversity of these two Cases, from the Cases last going before. Mich. Grass. thesaur. come. opin. sect. Instit. quaestio 18. num. 6. Swim. part ●. sect. 11.  
135. If the Testator make thee Executor, or give thee an hundred pounds if thou never marry, or if thou marry according to the appointment or consent of some other person; the first of these Conditions is unlawful, because it forbids Marriage wholly; and the second is unlawful, because it is referred to another person to make choice for thee, who perhaps may choose such an one as it is not fit or lawful for thee to marry with her: therefore in the first Case thou mayst be admitted to the Executorship, or obtain the Legacy, as if no such Condition had been: and in the second Case, thou mayst make choice of a woman thyself, (without the appointment of the other person) and marry her; and then thou mayst be admitted to the Executorship, or obtain the Legacy, but not before Marriage. Fran. Mantica de conject. ult. Volunt. li. 11. tit. 19 Covar. Epitome. de Sponsal. c. 2. sect. 9 num. 11. Swim. part 4. sect. 12. Mich. Grass. thesaur. come. opin. sect. Legat. quaestio 50. num. 9  
136. But if the Testator make thee Executor, or give thee an hundred pounds, if thou dost not marry before the age of one and twenty years, or if thou dost not marry a widow, or such or such a woman, or if thou dost not marry in the city of York; in these Cases if thou break the Condition, than thou losest all thy interest as to the Executorship or Legacy. Fran. Mantica de conject. ult. Volunt. li. 11. tit. 19 num. 8, 9 Swim. part 4. sect. 12.  
137. Also if the Testator make thee Executor, or give thee an hundred pounds, if his daughter do not marry; in this Case, if she die unmarried, thou art to be admitted to the Executorship, or obtain the Legacy: but if the Condition were that thou shouldst be Executor, or have an hundred pounds, if thy daughter did never marry; in this Case, though she die unmarried, yet thou art not to be admitted to the Executorship, or obtain the Legacy, because it shall be presumed that thou didst persuade and hinder thy daughter from Marrying; and therefore to prevent such Fraud, the Law doth reject such Condition. Fran. Mantica de conject. ult. Volunt. lib. 11. tit. 19 num. 5. Swim. part 4. sect. 12.  
138. If the Testator make thee Executor after the expiration of five years after his death, or he doth make thee Executor for and during five years after his death; this Assignation is lawful, and the Ordinary may commit the Administration of the Deceaseds goods in the mean time to the next of kin; during which time, the act of the Administrator is good, and cannot be avoided by the Executor afterwards: and the Ordinary may also commit the Administration of the Deceaseds goods unadministred by the Executor, after the expiration of the time of the Executorship, where thou art appointed Executor but for a time. Bro. tit. Administr. 45. tit. Exec. 155. Plo. come. in Griesby and Foxes ca Swim. part 4. sect. 17.  
139. If the Executor make his wife Executrix; and if she will not or cannot be Executrix, than he maketh his son Executor; and if his son be not Executor, than he maketh his sister Executrix; and if she be not Executrix, than he maketh his brother Executor: in this Case, the Testator is said to make degrees of Executors; and in this example there are four degrees of Executors. And observe always, the Executors in the first degree (as the Wife is here) is said to be instituted, and all the rest substituted. Mich. Grass. thesaur. come. opin. sect. Substit. quaestio 1. Swim. part 4. sect. 19  
140. Note also, that it is lawful for the Testator to make as many degrees of Executors as he pleaseth; and he may substitute into the place of one Executor, either one or more and into the place of many Executors he may substitute one alone, or he may substitute to every Executor one, or one of them to another. Justin. Instit. tit. de vulgari substitutione, num. 1, 2. Swim. part 4. sect. 17. cowel's Inst. pa. 131.  
141. But if the Testator do institute divers Executors, substituting one or more to them; so long as any of them which was first instituted may be Executor, the substitute is not to be admitted, unless the Testator do appoint to every such Executor a substitute; for then any one of these first instituted Executors, not being able, or refusing to be Executor, his substitute is then to be admitted with the rest of the Executors first instituted; whereas otherwise any one of the first instituted Executors in the first degree, lawfully undertaking the Executorship, all the substitutes are excluded: and in such case, if the Executor afterwards die intestate, than the Administration is to be committed of the rest of the goods of the Testator deceased, not administered by the Executor, except in some special cases. Mich. Grass. thesaur. come. opin. sect. Substit. quaestio 9 Repam. in li. 1. de vulgo Substit. num. 185, 187. Swim, part 4. sect. 19  
142. If the Testator make thee Executor if thou give ten pounds to A B; and if thou do not, than he doth appoint another to be Executor: though thou refuse to give ten pounds to A B, yet cannot that other be Executor, unless he give ten pounds to A B, because this condition of giving expressed in the institution, is understood to be repeated in the substitution. Menoch. de praesumptio 177. num. 28. Swim. part 4. sect. 19  
143. Note that every one may appoint as many Executors as he lists▪ so that the number be not infinite, as to say, I make all the men in the world my Executors: for such an Assignment (being an Argument of insanity of the mind) is void, at least in effect. Mich. Grass. thesaur. come. opin. sect. Instit. quaestio 13.   

CHAP. VI  
Of appointing Tutors, and some few things touching children's Portions.  
144. NOte, that every one, who may be an Executor, may be a Tutor; but no Tutor may intermeddle as Tutor, until he be confirmed by the Ordinary; and where one that is named Tutor is Lunatic, or absent beyond Sea, in such like cases the Ordinary may appoint another during such impediment: Also it is the custom of several places, that when divers are appointed Tutors, there in such case one alone may Administer, when the other cannot or will not intermeddle with the Tutorship Swim. part. 3. sect. 10, 12. cowel's Inst. pag. 31.  
145. And it is also the custom of several places, that if the Father appoint not a Tutor by his Will to his Children, than the Mother by her Will may appoint one; and if neither Father nor Mother appoint one then a Stranger (if he make the Child his Executor) may appoint one; and if there be no Tutor Testamentary than the Ordinary may appoint one Fleta, li. c. 9 Swim. part 3. sect. 9▪ Vide Co. 3. li fol. 38. cowel's Inst. pa. 30, 41. Noyes Maxims, pa. 105.  
146. Now as to the appointing o● Tutors, it matters not by what form of words they are appointed, so that the Testators meaning can but appear; nor in what Language the Tutor is assigned, whether in English▪ Latin, Greek, or any other Tongue Swim. part 3. sect. 12. Socin. Jun. Consil. 83. Vol. 1.  
147. It was the custom of many places formerly, that a Boy after he had accomplished the age of fourteen years, and a Girl after she had accomplished the age of twelve years, might then choose their own Tutors if they pleased, and refuse the Tutors appointed them by their Father's Will; but now by the Statute of 12 Car. 2. cap. 24. every Father, whether he be of the age of twenty one years or under, may by Deed executed in his life-time, or by his last Will and Testament in Writing, delivered in the presence of two or more credible Witnesses, dispose of his Children under the age of twenty one years, and not married at the time of his death, for and during such time as they shall remain under the age of twenty one years, or any lesser time, to the custody and tuition of any person or persons in possession or remainder (Popish Recusants excepted) and such dispossession of such Children, since the 24 of Febr. 1645, or hereafter to be made, shall be good against all and every person and persons claiming any such Child or Children, as Guardian in Soccage or otherwise. Litt. li. 2. cap. 5. Swim. part 3. sect. 11. Vide Noyes Max. pag. 105. & cowel's Inst. pag. 33. 12 Car. 2. cap. 24.  
148. And such person to whom such Children shall be disposed or devised, may have an Action of Ravishment of Ward, or Trespass against such person as shall wrongfully take away or detain such Child or Children, for the recovery of them, and recover damages for the same in such Actions, for the use of such Child or Children; and they are also empowered by the same Act of Parliament, to take into their custody, to the use of such Child or Children, the profits of all the Lands, Tenements and Hereditaments of such Child or Children, and the custody and management of their Goods, Chattels and personal Estate, until the age of twenty one years, or lesser time, according to the Parents disposition; and may bring an Action in pursuance thereof, as by the Law Guardian in Soccage might do. 12 Car. 2. cap. 24.  
149. Note, that every Tutor ought to take care, that his Pupil be honestly and virtuously brought up, and must provide for him Meat, Drink, Apparel, Lodging, and other necessaries according to his quality and condition, and aught to dispose of his Pupils Goods and Chattels to the Pupils best advantage, in selling of such Goods as will not keep without damage, and preserving of the rest till the Pupil come of age: And to this intent, it is the custom in many places, especially within the Province of York, that the Tutor at the Entry of his Office makes a true Inventary of all the Goods and Chattels of his Pupils, and doth enter into Bond with Sureties before the Ordinary, to make a just account; and then he is admitted and confirmed, and may seize upon the body of the Pupil, and take possession of his Goods. Bro. tit. Guardian, F. N. B. fol. 118. b. Swim. part 3. sect. 13. and cowel's Inst. pag. 49.  
150. Formerly there were several Ages to be taken notice of both in Boys and Girls, when they should be out of Tutorship; as, if a Boy were in Ward, by reason of Lands held in Knight's service, he could not be out of Wardship till twenty one years of Age; but in other cases at fourteen years of Age he might choose a new Tutor, if he liked not his old, and might call his old Tutor then to account: and so a Wench at twelve years of age might choose her Tutor, unless she were in Ward by reason of Lands held in Knight's service, as aforesaid; and then she was to continue in Wardship till sixteen years of age, unless she were fourteen at the death of her Ancestor; and then she was free, and might choose her Tutor: but now these Wardships are quite taken away by the 12 Car. 2. and every one may dispose of his Children to whom he pleaseth, observing the Rules aforesaid, in number 147. Litt. li. 2. cap. 4. Brac. li. 2. cap. 37. num. 3. Bro. tit. Guard. 7. 35 H. 6. fol. 52. Co. Litt. fol. 78. Fleta, li. 1. cap. 12. West. 1. cap. 22. Mert. cap. 6. Co. 2 part Inst. fol 90 and 203, 135, 136. Stat. Marlbr. cap. 17. cowel's Inst. pag. 37 and 45. Swim. part 3. sect. 14. F. N. B. 143.  
151. Note that there is a general custom within the Province of York, and in several other places, that there is due to the lawful Children of every man, being an inhabitant or householder within the same Province, (and dying there, or elsewhere) a filial or Child's part and portion, which is sometimes a third part, and sometimes an half part of the Father's clear movable Goods, as hath been aforeshewed, unless the Child be heir to his Father, or were advanced by him in his life-time; upon which exceptions hereafter follow several observations. Lindwood in C. Stat. de Testament. li. 3. Provinc. Constit. Cant. Brac. lib. 2. c. 26. F. M. B. de Rat. part honour. Swim. part 3. sect. 18.  
152. As, if the Father should by his last Will and Testament forbidden his Child to have any portion of his Goods, such Will in such Cases is void, and the Child may notwithstanding recover his filial part or portion: also, if the Father should le●ve his Child but twenty pounds, when by the rate of the Inventary his part comes to an hundred pounds; here he may refuse the Legacy, and recover his full portion, notwithstanding the Will: or, if the Father should impose any condition upon the said portion, as to be paid seven years after his death, or the like; yet the Child may sue for it presently after his Father's death, and recover it before the seven years be out; for it is presently due upon the Father's death, notwithstanding his Father's Will to the contrary: and if the Father by his Will should bequeath the Portion after the Child's death to any other person, in such case the Will is void, and the Portion shall go to the Executors or Administrators of the Child after his death: But I suppose it the Father leave the Child a far greater sum than by the rate of the 〈◊〉 Inventary the Child's part would come unto; in this case, the Father may impose what condition he pleaseth upon it, and the Child must either take it with the condition annexed, or otherwise he may refuse it, and stand to his Child's part without condition annexed to it. Swim. part 3. sect. 18. num. 4, 5, 6, 7 & 8.  
153. Also, if a man have a Son or Daughter married in his life-time, who hath a Child or Children, and then dies, and afterwards the Grandfather dies; in this case the grandchildren shall recover such part of the Grandfather's Goods as should have been due to their Father or Mother for their Child's Portion if they had lived. Reformatio Legum Eccles. tit. Test. cap. 10.  
154. If the Father leave a Legacy to his Child, being neither Heir, nor advanced by him in his life-time, and do not mention whether it shall be in lieu and recompense of his filial portion or no; in such case, if it be as much or more in quantity then the filial portion extends unto by the rate of the Inventary, or if it want but a very little thereof, than it shall be presumed to be given in lieu of his Portion; but if the Legacy be very small, than the Child shall both recover the said Legacy, and his filial Portion too. Menoch. de Praesumpt. li. 4. Praesumptio 109. num. 6, 26 and 110. Swim. part 3. sect. 18. num. 9  
155. Where the Child is Heir to his Father in Fee-simple or Fee-tail, though the Lands be but of very small value in regard of the personal Estate of his Father, yet he is thereby barred from having any filial Portion, by the custom of the Province of York, and some other places: yea, although he be but Heir in reversion, or hold Lands as Heir which are but Mortgaged with power of Redemption upon payment of such a sum of money at a certain day; yet during such holding, till the condition be performed, he is barred of his filial portion; but if he have only copy hold-lands after his Father's death, in such case he is not barred from the recovery of his filial Portion. Dyer, fol. 124. pl. 38. Swinbor. part 3. sect. 18. and the opinions of Sir Tho. H●●s●oth, Doctor of the Civil Law, and Sir Jo. Savile, one of the Barons of the Exchequer, Judge of Assize at York 1604, cited by Mr. Swinborne in his Marginal Notes.  
156. If the Father bestow or give any thing to a man of Trade, to take his Son an Apprentice, and to teach him his Trade; or bestow any thing upon a Schoolmaster or Tutor in the Universities of Oxford or Cambridge, for the increase of his Child's knowledge in Learning; or buy an Advowson or Ecclesiastical Benefice or Dignity, and afterwards presents his Son to it; or the Son being much indebted, the Father pays off his debts, or buys an Office and bestows it upon his Son; or, if any other but the Father bestow a preferment on his Son, though it be never so much; yet none of all these shall be accounted such preferment or advancement, as to bar the Child from the recovery of his filial Portion. Claudius' Battandier, Tract. de Legitima. cap. 12. num. 19, 20, 21, 28, 22, 31. Swim. part 3. sect. 18.  
157. But it is said by some, that if the Father bestow a Lease upon his Child, or grant to him an Annuity for life, out of his Lands; and though the Child be to reap no benefit by these, during, his Father's life, but after his death; yet it's held for a preferment, because it was assured to him in his Father's life-time. Swim. part 3. sect. 18. num. 25.  
158. And it is granted for certainty, that if the Father bestow a competent portion with his Daughter in Marriage, upon him that should marry her; this is such an advancement as shall bar her from the demand of a filial Portion: but it is to be understood, that this competent Portion must be equal, or not far inferior to that quantity which should fall to be due to such a Child after the rate and proportion of the Father's Estate at that very time when he bestows it on his Child, and not according to such quantity as should fall due at the time of the Father's death afterwards. Swim. part 3. sect. 18. num. 22, 26, 27.  
159. But if such gift be not competent, but far under the rateable part of that which would fall due to the Child, as 5 l. to put in his Purse, or spend at his pleasure, when perhaps the filial Portion would amount to several hundreds of pounds; this is not such an advancement as shall hinder such Child from the recovery of a filial portion. Swim. part 3. sect. 18. num. 28.  
160. Or if a man seized in Fee-simple of thirty Acres of Land, hath Issue two Daughters, and giveth ten Acres with one of them in frankmarriage, and dyeth seized of the other twenty Acres; in this case, she that is married may, if she will, have part of those twenty Acres also, and put them in hotchpotch with the other Land, and suffer the same to lie commixed and mingled together, and so an equal division shall be made betwixt the two Sisters, and each of them shall have fifteen Acres▪ whereas otherwise the Sister marrie● would get but ten Acres. Litt. 59 Fynches' Law, pag. 124. Terms of the Law, verbum hotchpotch. Swim. part 3. sect. 18. numb. 33.  
161. Note, that by Portion is to be understood, not only a sum of money, or part of the Father's Goods and Chattels; but also Lands and Annuities bestowed by the Father upon the Child. Swim. part 3. sect. ●8. num. 29.   

CHAP. VII.  
What things are deviseable by Will, and what not.  
162. OF Lands, Tenements and Hereditaments, some are deviseable by Custom, and some by force of certain Statutes, as hereafter appears. cowel's Inst. pag. 138. Swim part 3. sect. 2.  
163. Lands, Tenements and Hereditaments holden in Gavelkinde, by the custom of Kent, though they be holden in Knight's service, may be given, or devised by Will, and that without licence of the Lords, saving to the Lords the Rents and services due out of the same Lands and Tenements. Terms of the Law, verb. Gavelkinde. Mich. 1655. in B. R. Hammond and Thornhills Ca Syles Rep. fol. 476. Swim. part 3. sect. 3.  
164. And so Lands, Tenements and Hereditaments lying in London▪ York, Oxford, etc. and other place▪ where the same are held in Burgage-Tenure, may be devised by Will, fo● to hold in Fee-simple, Fee-tail, fo● life, for years, etc. and if he who hold such Lands, etc. in Burgage-Tenure be a Citizen or Burgess of the City or Burrow, where such Lands, Tenements or Hereditaments be holde● in Burgage-Tenure; then he ma● devise the same in Mortmain, whic● otherwise he could not do, if he wer● not Citizen, Burgess, or Freeman o● the same place: and it is not necessary that the Will wherein BurgageLand is devised should be in writing. But note, that the custom of the place must he observed, concerning the Probate or Inrolment of such Wills, etc. F. N. B. Bre. ex Gravi quaerela in pr. Bro. tit. devise 22, 43 and 51. Dr. & Stud. li. 1. cap. 7 and 10. Swim. part 3. sect. 3. Perkins, Sec. 577, 578. pag. 49. E. 3. devise 8.  
165. The Wife so long as she lives unmarried, shall have half of her Husband's Lands holden in gavelkind. Co. on Litt. fol. 111. Old Terms of the Law, verb. gavelkind.  
166. And of Lands held in Burrough English, by the custom of some places, the Widow shall have the whole, and sometimes the half of her Husband's Estate, Dum sola & casta vixerit. Co. on Litt. fol. 111. F. N. B. 150. Litt. li. 2. cap. 10.  
167. By the Stat. 32 H. 8. cap. 1. every one (except a woman Covert▪ an Insant under the age of one and twenty years, or a person De non sane Memory) may be their last Will and Testament in writing, or other Act lawfully executed in their life-time, give, dispose, Will or devise, all such Lands, Tenements and Hereditaments, as they are solely seized of in Fee-simple, or as much as of right in them is, of all such Lands, Tenements and Hereditaments, as they are seized of in Fee-simple in Copercenary, or in Common in Fee-simple, to any person or persons (except to Bodies politic and corporate) And two parts of three of all such Lands, Tenements, or other Hereditaments, as they hold in Knight's service. See now the 12 Car. 2. cap. 24. 32 H. 8. cap. 1, 34. and 35 H. 8. cap. 5. Fynch. Law, pag. 169, 170. Co. on Litt. fol. 111. b. Swim. part 3. sect. 3 and 4. And Wingates Abr. of Stat. tit. Wills.  
168. All manner of Goods and Chattels real and personal, movable and , may be devised by Will or Testament, except in some certain cases following. Perkins, sect. 511. Lind. in C. Stat. de Testament. li. 3. Provinc. Const. Cantibr. Swim. part 3. sect. 5. cowel's Inst. pag. 140.  
169. As where two men are jointly possessed of Goods and Chattels real or personal, one of them cannot make his Will, and bequeath his part to another; for when he dies, his part goes to the survivor: and so it is in Lands, Tenements, and Hereditaments also. Perkins, sect. 500, 526. Dr. & Stud. li. 1. cap. 6. Litt. li. 3. cap. 3. cowel's Inst. pag. 140. Clerk of Assize, pag. 63.  
170. Nor can a Spiritual person, or Master of a College or Hospital, or Mayor of a City, devise those things which belong to their Church, College, Hospital, or City; nor can the Crown or Jewels of the Realm be devised by Will, but they may be given by Letters-patents; and a Parson by Will may devise the Corn growing on the Glebeland at the time of his death. Perkins, sect. 496 and 497, 498. Brac. 1. li. 1, 2. cap. 14. Dr. & Stud. li. 2. cap. 39 cowel's Inst. pag. 125. F. N. B. devise 5. & Exer. 108. Swim. part 3. sect 6.  
171. The Husband cannot devise such Goods as his Wife hath, as being Executrix to another▪ nor such things as are in Action, as debts due to her before Marriage by Obligation or Contract, unless he and his Wife sue and recover the same during Marriage, or that he renew the Bonds, and take them in his own Name; otherwise after his death they remain to her. Co. on Litt. fol. 351. b. 9 H. 6, 52. & 21 H. 7. fol. 29. Kitchen, fol. 251. a. Finches Law, pag. 44 & 168. Bro. Testam. 11. Swim. part 2. sect 9 num. 13.  
172. Also if the Husband be possessed of a Term or Lease for years in right of his Wife, he cannot devise it by his Will, but he may grant it away, or dispose of it in his life-time▪ or, if he make no disposition thereof, yet if he survive her, than it falls to him; and in such Case he may devise it by William Dame Hales ca Plo. come. fol. 260. Co. on Litt. fol. 251. a. Kitchen, pag. 267. b. 7 H. 6, 1. Perkins, sect. 560. Dr. & Stud. li. 1. cap. 7.  
173. An Administrator cannot devise those Goods by Will, which he hath as Administrator to another person dying intestate, but Administration thereof shall be committed to the next of Kin to the first Intestate; neither can an Executor devise those Goods by way of Legacy, which he hath as Executor; but he may make his Testament, and appoint another Executor, who shall have the Administration of the same Goods, to the use of the first Testator. Fynches' Law, pag. 168. Bro. Adm. 7. F. N. Br. Adm. 3. 31 E. 3. cap. 11. Plo. come. fol. 525, 526. Swim. part 3. sect. 6.  
174. Those things also which belong to the Heir after the Testators edath, cannot be devised by Will, as Glass-windows, Wainscot, Tables dormant, and Benches affixed thereunto, or mortifed in the Earth▪ Furnaces, Coppers, Leads, Ovens, etc. set in Morter or Stone; nor Trees, nor Grass growing, etc. Bro. Exer. 65. Cowel Inst. pag. 140. Co. 4. Rep. fol. 62. Swim. part 3. sect. 6. Noyes Max. pag. 106.  
175. But Corn growing on the Land at the time of the Testators death may be devised by Will, by those who are seized in Fee-simple, Fee-tail, or for life; and also by Tenant in Dower, Tenant by the Courtesy, and Tenant in Mortgage, and their Tenants; and he who is seized in right of his Wife, although thei● Estates do determine before the said Corn be ripe and severed, except in some special Cases. Perkins, sect. 512, 514 & 522. Dr. & Stud. li. 1. cap. 20.  
176. If a woman Tenant in Dowe● sow her Land, and afterwards marry, and the Husband dies before severance of the Corn; in this Case it remains to her, and he cannot devise it: but if it had been sown after the Marriage, he might have devised it. Clerk of Assize, pag. 57 Abr. Dr. & Stud. li. 1. cap. 20.  
177. If Tenant for life have Hops growing, and die a little before the severance of them; in this Case the Executors or Administrators shall have them, and not he in Reversion or Remainder; for the Hops are accounted as Emblements, they growing by Manurance and Industry of the Owner, by the making of Hills, and setting of Poles. Vide Mi●h. 11 Car. 1. B. R. Latham and Attwoods' Case, Cro. 1 part fol. 396.  
178. As Goods and Chattels may be devised, as aforesaid; it is now further observable what a quantity or proportion of Goods and Chattels the Testator may devise by his Will: observe therefore, that if the Testator have neither Wife nor Child at the time of his death, h● he may then dispose and devise al● the clear residue of his Goods and Chattels, over and above the discharging Funeral-expences and hi● debts. Lindwood in C. Statut. d● Testament. li. 3. Pro. Const. Cant. verbum defunct. Brac. li. 2. cap. 26. Swim. part 3. sect. 16.  
179. But it is the custom of many places, especially within the Province of York, that if the Testator have a Wife or Child at the time of hi● death, that then he can but dispose of half of such his clear Goods, and the other half is to go to the Wife or Child; and if he have both a Wife and Child, or Children at the time of his death, than the Goods are divided into three parts; whereo● one part is to the Wife, another to the Child or Children, and the other third part, called the death's part, is left to his disposing; and it no disposition be made thereof, it falls to the Executor: but note here, that if the Child or Children were Heir to the Testator, or were advanced by the Testator in his life-time, than the Testator may devise one half of the clear goods, and the other half shall go to his Wife. F. N. B. Bre. de Rat. part bonor. Bro. eod. tit. N. 6. M. 7. E. 4. fol. 21. a. Brac. li. 2. cap. 26. Fleta, li. 2. cap. 50. Glan. li. 2. cap. 20. Co. 2 part Inst. fol. 33. Swim. part 3. sect. 16. Refor. Legum Ecclesiast. tit. jest. cap. 10.  
180. Note, where the Wife and Children ought to have a rateable part of the Goods of the deceased, be it third part or half, as the case is, there also they ought to have a like part of the debts due by the deceased, after they are recovered by the Executor or Administrator; but of Leases they can have no rateable part, where they use to have a rateable part of the movable Goods and Debts recovered, unless it be by special custom of the City, County, Deanery, or place where the Testator dwelled, and had such Leases. Swi●. part 3. sect. 16. F. N. B. Breve de Rationabl. part. bon.  
181. This rateable part of th● Goods to the Wife and Children, i● saved to them by the Statute of Magna Charta: but note, the Wife o● Children cannot sue the Executor o● Administrator for their rateable parts, till all the Testators Debts b● paid; and than what remains is to be divided according to the Rule● aforesaid, into two or three parts before any Legacies be paid; fo● they must all be paid out of th● deaths part after the division. Magna Charta, C. 18. Regist. fol. 142. 〈◊〉 F. N. B. 122. b. M. 7. E. 4. fol. 21. a● Co. 2 part Inst. fol. 33.   

CHAP. VIII.  
Several Cases concerning the bequeathing of Legacies, and also touching Devises.  
182. AS an Executor may be appointed divers ways, as is knewed before, chap. 5. so also a Legacy may be given after divers ways, either simply or conditionaly, etc. Swim. part 4. sect. 3. num. ●.  
183. That Legacy is said to be pure and simple, which is given without a condition annexed to it: and as in appointing an Executor, it matters not after what form of words it be; so it is in the bequeathing of a Legacy, for it skills not after what form the same be given, so that the Testators meaning do but appear whether it be in Goods and Chattels, or Lands and Tenements. Swim. part 4. sect. 4. num. 18.  
184. Note, that a Legacy may be given from a certain time, or until a certain time; albeit the Legatary dye in the mean time, before the day come, yet the Executors or Administrators of the Legatary may recover the same when once the day is past, as the Legatary himself might have done i● he had lived so long; unless th● meaning of the Testator be to th● contrary, or that it be such a thing as cannot be transmitted to the Executor, as personal service: but if th● Legacy be given after an uncertain time, as where the Testator give thee an hundred pounds when h● Son shall die, or the like; there 〈◊〉 thou die before the time come, th● Executors or Administrators ca● then recover nothing. So note th● diversity. Mich. Grass. thesaur come. opin. sect. Legat. quaest. 43. Mant● ca de conject. ult. volunt. li. 11. tit. 2● num. 8. Swim. part 4. sect. 17. Refor. Legum Eccles. tit. Testament. cap. 26.  
185. If a man devise to his Daughter an hundred pounds when she shall be married, or to his Son when he shall be of the Age of twenty one years; here if they die before the time appointed, their Executors shall not have it: But if the devise were of an hundred pounds to the Daughter, to be paid her when she shall be married; or to the Son, to be paid him when he shall attain the age of twenty one years; in such case, if they die before such time, than their Executors may recover the Legacy. Tr. 1653. B. R. in Dumlowe & Shawes Ca Hughes grand Abridg. 1 part, pag. 664. cap. 14.  
186. Note that a Legatary may not of his own Authority take the Legacy, and serve himself, but must receive the same at the hands of the Executor; except in some cases, as where the Legatary is possessed of his Legacy at the time of the Testators deaths; for in such cases, he may retain and keep it, if there be sufficient assets besides in the Executors hands to pay the Testators Debt; or, if the Testators give licence to the Legatary to enter to his Legacy, than he may do it without the Executors consent; and if he be both Legatary and Executor, than he may serve himself. Perkins, sect. 488. Hernes Law of Con. pag. 88 Socin. Jun. Consil. 111. vol. 1. Swim. part sect. 4. num. 23. Perkins, sect. 570, 572, 573.  
187. But the Legatary hath no remedy by the Common Law for any Legacy of goods to him bequeathed, if the Executor will not deliver the same; but he must in this case have a Citation for the Executor, to appear before the Ordinary, or other competent Ecclesiastical Judge, to answer him in cause of his Legacy▪ except in case where a particular thing is bequeathed, as the Testators Horse or Signet, etc. and in such case, the Legatary may sue at Common Law for the same. Bro. devise, num. 3, 6, 14, 27, 30. Terms of the Law, verbum Devise. Swim. part 4. sect. 4. num. 23.  
188. Also if the Testator will that his Executors shall sell his Land, and pay such and such Legacies out of the Moneys; in this case the Legataries may sue at Common Law, and not in the Spiritual Court for their Legacies. Mich. 5 P. & M. Dyer, fol. 151, 152. Vide M. 29. & 30 Eliz. C. B. Germyes' Case. Leon. Rep. fol. 87. & Tr. 17 Jac. C. B. Rot 895. Edwards & Graves Case. Hob. Rep. fol. 265.  
189. But if the Legacies he granted to be paid out of Leases, and not out of Fee-simple-Lands; then the Legatary may sue in the Spiritual Court for such Legacy. Brownlowes 1 part Rep. fol. 34.  
190. Testamento cum duo inter se pugnantia reperiuntur, ultimum ra●um est: If there be divers devises of one thing in one Will, the last devise taketh place only. Co. on Litt. fol. 112. b.  
191. If the Testator bequeath to A B all his Goods; in this case it is the opinion of some, that A B shall have the Testators whole Estate actively and passively, (only his Lands, Tenements, and Freehold excepted) being in effect, his Executor or Heirs, as the Civil Law terms him, and is hereby chargeable with the Testator debts, so far as the Goods will extend. Gloss. in L. his verbis, sect. de Haered. Instit. Swim. part 7. sect. 10.  
192. But others are of opinion, that if a man grant omnia bona, (that is, all his Goods;) in this case, Leases for years, nor a Ward, no● things in Action, as debts upon Promise or Obligation, shall not pa●● thereby; for these are Chattels. 4. E. 6. Bro. tit. Grants 51. & Done 43. Kitchen, pa. 44. b.  
193. But if the Testator do bequeath to A B all his Chattels; in such case he shall have the Testators whole Estate, Leases and Wards too; for Cattalla includes all but freehold, as well  as movable. Standford. de praero. Regis, cap. 16. Kitchen Court. Leet, pag. 45. a. & 46. a. Swim. part 7. sect. 10.  
194. But note, that A B by such devise shall not have Glass of the Widows, Wainscot, Tables dormant, Fats in the Brewhouse fixed to the ; nor Furnaces, nor the Box or Chest wherein the Testators Evidences are; nor Hawks, nor Hounds, nor Doves in the Dove-house, nor Fishes in the Pond, nor Deer in the Park: for these things belong all to the Heir. Fynch. pag. 22. Noyes Max. pag. 101 and 107. Vide Hill. 43 Eliz. C. B. Grace and Trowes Ca Goldesboro. Rep. pag. 129. pl. 24. 18 E. 4. fol. 14. 4 H. 7, 10. And 21 H. 7, 26. Kitchen, pag. 45. b. 46. a.  
195. Note also, that if A B die before he have proved the deceased● Will, wherein he bequeathes to him all his Goods, or all his Chattels, as foresaid; yet in such case Administration shall be committed to the next of Kin to the said A B, and not to the next of Kin to the Testator. 23 Eliz. Dyer, fol. 371. Swim. part 4. sect. 10.  
196. But if the Testator, in either of the cases, make another man Executor; then the Legatary shall not enter into the whole Estate of the deceased; but the Executor proving the Will, is to enter, and may receive or sue for all the debts due to the Testator, and stands also chargeable with the payment of the Testators debts; and what remains is due to the Universal Legatary. Mich. Grass. thesaur. come. opin. sect. Inst. q. 14. num. 3. Swim. part 7. sect. 10.  
197. If the Testator bequeath to A B all his movable goods; here the Legatary may recover all the Testators personal Goods and Cattle, both quick and dead, which either move themselves (as Horses, Sheep, Ox●●●, Swine, etc.) or can be moved by another, as Householdstuff, Plate, Plough-geer, Wanes, Carts, Corn in the Barns or Garners, and also Corn growing on the ground: And such Debts as were due to the Testator, and did arise by reason of such movable things, and for recovery whereof, there lieth an Action personal, do belong also to the Legatary; but the Legatary cannot sue for the same in his own Name, if another man be made Executor; but the Executor must sue for the same, and after recovery, deliver the same to the Legatary. Paul. de Castrens. Consil. 132. vol. 1. Socin. Jun. Consil. 60. vol. 1. Stamf. 45. Swim. part 7. sect. 10. Noyes Max. pag. 99 Mich. Grass. thesaur. come. opin. sect. Legat. quaest. 19  
198. But where the Testator doth bequeath to A B all his Goods ; here the Legatary hath right only to the Leases for years, which did belong to the Testator, and to such benefits as arise thereby, as Fruit on the Trees, Grass growing on the Ground, Fishes in the Pond, and Pigeons in the Dove-coate, as appurtenant to the Grounds demised, or as parcel of the Fruits of the Tenements (which if they were out of Lease) did belong to the Heir: but as to Corn growing on the Ground, or other Fruits industrial, as Hemp, Line, etc. Turnips, Carrots, or other Roots; they are accounted amongst the movable Goods, and such Legatary shall not have them: but he shall have such Debts as were due to the Testator by reason of something , as Rents due out of Leases, or Arrearages of Rents due out of Lands, Tenements and Hereditaments; but he cannot Commence Suit in his own Name, if another be made Executor, as is showed before, number 197. cowel's Interp. verb. Chattels. Kelloway, Rep. fol. 118. Stamf. cap. 16. fol. 45. Mich. Grass. thesaur. come. opin. sect. Legatum, q. 19 num. 5. Swim. part. 7. sect. 10. Bro. Executor 49.  
199. If the Testator bequeath to thee all his Householdstuff; in this case thou shalt have all his Tables, Forms, Stools, Chairs, Trunks, Chests, Cupboards, Bedsteads, Curtains, Balance, Rugs, Blankets, and all manner of Bedding; and also Hang, Carpets, and all manner of Linen, as Sheets, Table-cloths, etc. Basins and Ewers, Candlesticks, Salts, Flagons, Pottingers, Saucers, etc. Bowls, Barrels, and all manner of Vessels serving for meat or Drink, whether they be of Earth, Wood, Glass, Pewter, Brass, or Silver, or Gold, if they were used in the daily service of the House, and not kept for Ornament only; and also, Pots, Pans, Spits, Racks, and the like: and lastly, Coaches by some are held to pass by the name of householdstuff. Menoch. de praesumpt. li. 4. praesump. 160. num. 8, 16, 17 and 19 And Praesump. 122. num. 21. Panor. Consil. 88 vol. 2. num. 3. Swim. part 7. sect. 10.  
200. But Apparel, Books, Weapons, Artificers Tools, Cattle, Victuals, Corn in the Barn or Granary, Wanes, Carts, Ploughs, etc. and Vessels affixed to the , do not pass by the name of Householdstuff. Menoch. de Praesump. li. 4. Praesump. 160. num. 29 and 33. Labeo, and Gloss. de Supellectil. Swim. part 7. sect. 10.  
201. If the Testator having store of young Colts, willeth his Executor to give to A B two Colts of the age of two years, and after the making of his Will liveth many years; in this case there is due to the Legatary two of the first Colts, which were extant at the time of the Will making, and not of the last Colts at the time of his death. Franc. Mantica de conject. ult. volunt. li. 3. tit. 11. Menoch. de Praesump. 127. num. 6. li. 4. Swim. part 7. sect. 11.  
202. And if the Testator bequeath to A B all his Goods, which are in such a place, and afterwards he brings more Goods thither, and then dies; here the Legatary shall have only those Goods which were there when the Will was made, and not those Goods too which were brought thither afterward. Menoch de Praesump. 127. num. 29. li. 4. Swim. part 7. sect. 11.  
203. But if the Testator had said, I bequeath to A B all my Goods which shall be in such a place, or all my Goods which may or can be found in such place; here all the Goods in that place at the time of the Testators death, are due to the Legatary, though they were brought thither by the Testator after the making of his Will. Franc. Mantica de conject. ult. Volunt. li. 3. tit. 11. num. 12. Menoch. de Praesump. 127. num. 87. li. 4. Swim. part 7. sect. 11.  
204. If the Testator bequeath to A B his Herd of Cattle, and there is but one left at the time of his death; in this case the Legatary can recover no more. Swim. part 7. sect 11. Simo. de Praetis. de Interp. ult. Volunt. li. 4. fol. 179. Dubit. 9 num. 45.  
205. Where the Testator doth bequeath to A B the Corn in his Barn, and afterwards layeth up more Corn in the Barn, and dyeth before the other be thrashed; in this case the Legatary can but have only that Corn which was there at the time of the Will making; but if that be all spent before the Testators death, than he may recover as much of the new Corn, but no more. Ful●. fol. 41. Plo. Co. fol. 341. Mas●ar. de Probat. Conclusio 1280. num. 32, 33. Swim. part 7. sect. 11. cowel's Inst. pag. 145.  
206. So note, that it appears by these cases, that sometimes the Testators death is to be taken notice of, and sometimes the making of the Will is to be respected in the recovery of Legacies: but in these and all other cases, the Testators meaning is chief to be inquired after. Franc. Mantic. de conject. ult. volunt. li. 3. tit. 11. num. 22, 23, 24. tit. 19 num. 1, 2, 3, 4. Swim. part 1. sect. 3. num. 19 and part 7. sect. 11.  
207. If the Testator bequeath all his clear goods after Debts paid, etc. to his Brother and his Children; in this case the Father shall have half of the clear Goods, and the Children the other half: for it is a Rule, that where divers persons are comprehended under one Name collective with another third person; then all they which be included under that one Name, do represent but one only person, as in this case, and shall have but a Moiety amongst them; unless it be proved that the Testators meaning was that the Goods should be equally divided amongst them; or, that he expressed it so in his Will. Paul. de Castr. sect. de Haered. Instit. Fra. Mantica de conject. ult. vol. li. 4. tit. 9 Swim. part 4. sect. 20.  
208. If the Testator bequeath to the Child in the Mother's Womb an hundred pounds, in this case, if the Mother bring forth two or three Children at that time, the Legacy is to be divided amongst them. Franc. Mant. de Con. ult. Volunt. li. 4. tit. 8. num. 4. Swim. part 4. sect. 20. Paul. de Castr. sect. in li. Qui Filiabus.  
209. But if the Testator say, If my Wife bring forth any Child, I give to the same an hundred pounds; here if she bring forth two or three Children at that time, than every Child shall have an hundred pounds, if the Testators Goods do suffice to satisfy the same; unless it be sufficiently proved, that it was the Testators meaning, that they should have no more but an hundred pounds amongst them. Swim. part 4. sect. 20. num. 17. Text. in D. sect. 1.  
210. If the Testator bequeath to the Child in the Mother's Womb, if it be a Man-child, two parts of of his clear Goods; and if it be a woman-child, than the Mother to have two parts of his clear Goods, and the Child but one, and afterwards the Mother brings forth two Children, both a Man-child and a woman-child; in this case the Son shall have twice as much of the Testators clear Goods as the Mother, and the Mother shall have twice as much as the Daughter: as for Example, the clear Goods amount to sevenscore pounds; here the Daughter shall have twenty pounds, the Mother forty pounds, and the Son fourscore pounds; whereas, if she had brought fourth only a Son, than the Son should have had fourscore and thirteen pounds six shillings and eight pence, and the Mother six and forty pounds thirteen shillings and four pence: and if she had brought forth only a Daughter, than the Mother should have had fourscore and thirteen pounds six shillings and eight pence, and the Daughter forty six pounds thirteen shillings and four pence. Franc. Mantica de conject. ult. Volunt. li. 4. tit. 9 num. 12. Swim part 4. sect. 20.  
211. But if the Testator bequeath to the Child in the Mother's Womb, if it be a Manchild, two parts of his Goods, as aforesaid, and the Mother one; and if a woman-child, than the Mother two parts, and the Child but one; and the Mother brings forth an Hermaphrodite, who hath both the parts of a man and a woman; in this case the Hermaphrodite shall have only the Portion due to that Sex of which the Hermaphrodite doth most participate, and not the Portion due to both Sexes: and if it be doubtful of which Sex it doth most participate, than it shall be presumed according to the more worthy kind. Swim. part 4. sect. 20. num. 19 Co. on Litt. fol. 8. Phillipps pr. of Law, pag. 36.  
212. If the Testator give an hundred pounds to the Children of A B, who hath four Children at that time of the Will making, and afterwards before the Testators death A B begetteth other four Children, so that he hath eight Children in all; yet in this case those four only which were born when the Will was made, shall have the hundred pounds, and the other four shall have nothing out of it. Simo. de Praetis. de Interp. ult. Volunt. li. 4. dub. 9 fol. 178. Menoch. de Praesump. li. 4. Praesumptio 127. num. 18.  
213. If the Testator bequeath an hundred pounds lying in such a Chest to A B, and there is no Money in the Chest; here the Legacy is void, unless the Testator say, I give to A B an hundred pounds, and I will that the same be paid out of the moneys which I have in such a Chest, or of the Money which such a man doth owe me; in such Case, although there be no Money in the Chest, nor any due by the person named by the Testator, yet the Legacy is due, and aught to be paid out of the Testators Goods. Swim. part 7. sect. 5. num. 15. Mich. Grass. thesaur. come. opin. sect. Legat. quaestio 59 num. 3.  
214. And where the Testator doth bequeath ten pounds to A B remaining in such a Chest, and at his death five pounds only is found in the same Chest; in this case the Legacy is good for so much as is found in the Chest, and no more. Swim. part 7. sect. 5. num. 15. Paul. de Castr. in D. sect. quinque num. 9  
215. If the Testator do imagine himself to be indebted to another person, and doth bequeath that debt to the same person, which he erroneously supposeth he oweth him, not expressing any sum; in this case the Legacy is void: but if he say, I do bequeath ten pounds to such a person, which I own him, whereas the Testator knows he owes him nothing; yet in this case the Legacy is due, notwithstanding the false demonstration; and here the Testator is not presumed to err, unless the Executor make proof of error. Paul. de Castr. in li. 2. C. de falsa causa adject. Swim. part 7. sect. 5. num. 14.  
216. If the Testator meaning to give but fifty pounds, doth give an hundred pounds; or meaning to give an hundred pounds, doth give but fifty pound: in these cases the Legatary may recover as much as the Testator did mean and intent to give, be it more or less than the sum mentioned. Swim. part 7. sect. 5. num. 13.  
217. If the Testator bequeath an hundred pounds to the Church, not mentioning what Church, it shall then be understood of his Parish-Church; or if he name a Church, and there be divers there of the same name, and none of them his Parish-Church; then the Executor, if he prove the Will; or the Ordinary, if he refuseth, may bestow the same on which Church he will: but if the Testators Parish-Church be of the same name, it ought then to be bestowed there. Mich. Grass. thesaur. come. opin. sect. Legat. q. 64. Swim. part 7. sect. 8. Franc. Manti●. de conject. ult. vol. li. 8. tit. 6.  
218. Where the Testator doth bequeath one half of his Goods to one person, and makes another his Executor, willing and appointing that all his Goods shall be divided betwixt them; in this case the Legatary shall have half before debts paid, and the Executor the remainder after debts paid: as, where the Testator hath Goods to the value of an hundred pounds, and oweth twenty pounds out of the same; here the Legatary shall have fifty pounds, and the Executor shall pay the twenty pounds' debt out of his half. 5 Mariae▪ Dyer fol. 164. Goldesborough Rep. pag. 149. Pl. 74. Hil. 43 El. C. B. Swim. part 7. sect. 10. cowel's Inst. pag. 146.  
219. If a man bequeath twenty pounds to A, and twenty pounds to B, and twenty pounds to C, and makes his Executor, and dies, having Goods in all but to the value of twenty pounds, of which Goods the Executor makes an Inventary; in this case he may pay which of the three he pleases his whole Legacy, and the other two are without remedy; or he may, if he please, pay every one of them a rateable part: and if in case the Executor make no Inventary, yet he is chargeable no further ●●en the value of the Goods; and so 〈◊〉 every Legatary in such case should 〈◊〉 him, they must prove sufficiency of goods, or otherwise they should ●et nothing. Plo. come. fol. 545. in Case ●ter Parham and Yardly. Dr. and ●ud. li. 2. cap. 10.  
220. If the Testator say, I will ●at A B shall have an Horse; here 〈◊〉 Election belongs to the Legatary: but if he had said, I will that my executor give to A B an Horse, than the Election belongs to the Executor: and if the words of Election be directed to neither of them, than the Legatary shall make the Election, if there be any such thing extant amongst the Testators good as is bequeathed; and if not, than the Executor is to make the Election: and in case where the Legatary chooseth, he must not take the very best, unless there be no more but two of the things extant; for than he may choose the best, and so he may do when the Testator grants him the Election; and as the Legatary may not choose the best, neither may the Executor obtrude the worst of those things extant; and where there is no such thing extant, than the Executor i● to provide a competent thing for th● Legatary. Mich. Grass. thesaur. come▪ opin. sect. Legat. q. 62. num. 2 and; Mins. in D. sect. si generaliter, num. 〈◊〉 Swim. part 7. sect. 10. Co. on Litt. foe 144. b.  
221. If the Testator bequeat two Horses to two Men, having 〈◊〉 more, and one of them is a grea● deal better than the other; in this case he that is first named in the Testament shall have the Election. Co. on Litt. fol. 144. b. 2 H. 7, 23. Swim. part 7. sect. 10.  
222. If the Testator give to A B twenty pounds if he will, in such case A B must express his willingness by some means, or else the Legacy is not due; and if he die before such expression, than the Legacy is lost, and shall not go to his Executors or Administrators, which otherwise it would, if no such condition had been expressed. Swim. part 4. Sect. 6. num. 7.  
223. If an Executor have a Legacy left him by his Testator, and refuseth to stand to the Executorship, in such a Case he looseth his Legacy. Gribald. Thesaur. come. opin. verb. Tutor. Swim. part 6. sect. 2. in sine. Refor. Leg. Eccles. Tit. Testament. C. 23, and 24.  
224. But if the Executor be not duly admonished to take the Executorship upon him, then if he be the Testators Kinsman, or such a person to whom the Testator would have given the Legacy, though he did not perform the Will, and take the Office upon him; in such case he shall not lose the Legacy then, by his refusal of the Executorship; neither shall the Wife lose her thirds, nor the Children their filial Portions, nor the Creditor his debt, if any of them be made Executors, and refuse to take the Office upon them. Swim. part 6. sect. 3. num. 15. Sichard. in lib. Si legatarius, cap. de legate.  
225. If a man by his Will devise all his Lands and Tenements to A B▪ in this case, not only all his Land and Tenements which the Testator hath in possession do pass, but also those which he hath in reversion also▪ by virtue of the word Tenements Terms of the Law, verb. Devise. cowel's Inst. pa. 144. Swim. part 4. sect. 4▪ num. 19  
226. But if the Testator have both Lands in Fee, and Lands in Lease for years, and deviseth all his Lands and Tenements; in such case the Lands in Fee only pass, and not the Lands in Lease for years: but if he have none but lands for years in Lease only, than those lands shall pass by virtue of such devise. Tr. 7 Jac. B. R. Rose and Bartlet's Case. Cro. 1 part Rep. fol. 213. Noys Maxims pag. 99  
227. If lands be devised to a man to have to him for evermore, or to have to him and his Assigns; in both these cases a Fee-simple doth pass to the Devisee: but if such a Gift or Grant were made by Deed, it would carry an estate but for life, without the word Heirs were in it. Perkins, sect. 557. M. 22 E. 3. Devise 20. Terms of Law, verbum Devise. Swim. part 4. sect. 4. num. 19  
228. Also if a man devise his lands to another, to give, or sell, or do therewith at his pleasure; here he hath a Fee-simple also: and if lands be devised to one and his Heirs males, this shall amount to an Estate in tail; but if such words be in a Feoffment, it shall be taken for a Fee-simple, because it doth not appear of what body the heirs Males shall be begotten. Terms of the Law, verb. Devise. Co. on Lit. fol. 9 b. Swim. part 4. sect. 4. cowel's Inst. pag. 144.  
229. Also if one devise to an Infant in the Mother's womb, it is good; but such a Feoffment, Gift, or Grant is void: and if one will that his So● shall have his land after the death of his Wife, in this case the Wife (by the favourable interpretation of such Will) shall have the land for term of her life. Finches Law, pag. 172. 13 H. 7. 13. Terms of the Law, verb. Devise. cowel's Inst. pag. 144. Swim. part 4. sect. 4. Noyes Maxims pag. 100  
230. If a man devise all his lands in A. to his two Daughters, and makes them Executrixes; and afterwards purchaseth more lands in A. and then dies without a new publication of his Will, and expressing of this land newly bought therein; in this case this land newly bought doth not pass by the same Will. H. 43 El. C. B. Beckford and Parncotes Ca Goldsboroughs Rep. pag. 150. pl. 77.  
231. A man having four Daughters A, B, C, and D, devices his lands to his Wife for her life, and after her decease the same to be equally divided amongst his Daughters or their Heirs; A one of the Daughters died before the Mother, and after the Mother's death the heir of A sued for a fourth part, and adjudged for the Heir by virtue of the disjunctive (or) but if it had been to have been divided amongst his Daughters (and) their Heirs, this word had altered the case, and would have given the Fee to the three surviving Sisters. Mich. 1 Car. 1. B. R. Rot. 189. Taylor and Hodgskies' Case, Godbolts Rep. fol. 363.  
232. If one devise his lands to another Man and his Heirs, and the Devisee dieth in the life-time of the Devisor, and afterwards the Devisor dieth; in this case the Heirs of the Devisee shall not have the land. Plo. Com. fol. 342. in Brett and Rigdens' Case.  
233. If a man seized of lands in Fee, sow the same with Corn, and afterwards deviseth the land to A B, and dieth before the Corn be severed; in this case the Devisee shall have the Corn a swell as the land: but it is otherwise where the lands descend to the Heir; for the Executors or Administrators shall have the Corn sown at the Testators death. Mich. 20 Jac. C. B. Spencer's Case. Winches Rep. fol. 51.  
234. A man devised his Message whereof he was seized in Soccage in Fee, by these words: I devise my Message where I dwelled to my Cousin H and her Assigns for eight years, and my Cousin H shall have all my Inheritances if the Law will; and this was adjudged a good devise in Fee of the Message, and by the general words of the Will all the Inheritances pass also. Mich. 11 Jac. C. B. Wedlock and Hardings Case. Godbolts Rep. fol. 208.  
235. If a man devise his Lands to the Heirs-Males of any of his Sons or next of Kin, such a devise is void for the uncertainty thereof. Hil. 2 Car. 1. C. B. Rot 1288. in Hunt and Fisher's Case; and Trin. 1649. B. R. Rot 849. Beal and Wymans Case. Styles Rep. fol. 240.  
236. A man having Lands in Fee-simple, and Goods to the value of five pounds only, deviseth to his Wife all his whole Estate, paying his Debts and Legacies, which amounted to forty pounds; in this case it was adjudged that all the lands did pass by the devise, and that the Wife had a Fee-simple in the lands, the word (paying) enforcing it; for they are to be paid presently, which cannot be if the land pass not in Fee. Tr. 1651. B. R. Kirman and Jonson's Case. Styles Rep. fol. 293. and see 29 H. 8. Bro. Testament. 18.  
237. A seized of three Houses, and other Lands, Pastures and Meadows in W in the County of H, and of Land in the County▪ of O, devised in this manner, viz. I give my Capital Message in the County of O, and all other my Lands, and Meadows▪ and Pastures in the Parish of W, to such an one; and adjudged here that all the houses passed by the devise; for that lands comprehends houses also. Ewer and Heydons Case. Abr. Mores Rep. pag. 103. pl. 468.  
238. If a man devise the profits of his lands, it is a devise of the lands themselves. Tr. 16 Jac. C. B. Rot 465. Balder and Blackbornes' Case Brownlo. 1 part 79. Owen's Rep. 66 Tr. 23 Car. Styles 81.  
239. A man by his Will deviseth his lands to his Wife; and if she have Issue by the Devisor, that his Issue shall have it at his age of twenty one years; and if the Issue die before that age, or before his wife, or if she hath no Issue, that then she shall choose two Attorneys; and sheto make a Bill of sale of any lands to her best advantage: In this case it was resolved, that the wife hath those lands for life; and she having no Issue, hath not any interest to dispose, but hath an authority to nominate two who shall dispose of the lands, and they shall make sale of them. Mich. 5 Jac. B. R. Beal and Shepherd's case. Bro. 2 part Rep. fol. 199.  
240. I might go on to show what words in a Devise make a Condition, and what a Limitation; and where an estate shall pass by Implication; and what words make an estate , Feesimple, or for Life; and where the Devisees shall be joint-tenants, and were Tenants in Common, with several other things; but it not being the intent of this Treatise, I refer the Reader to the learned Reports now extant, where he may be satisfied: and so I return again to my purpose.  
141. Devises and Legacies are to be sued for in the Ecclesiastical Court, but the Ordinary cannot take Cognizance of Fees or  devised; but a Prohibition will lie, if any Judge of any Spiritual Court shall cite one before him in case of such a devise as intrencheth upon the Common Law. Perkins, sect. 576, 579. and Dr. and Stud. li. 2. cap. 55▪ cowel's Inst. pag. 146.  
242. Note, there may be much deceit used by a knavish Executor; and though the Goods be of a great value after the Debts are paid which were truly owing and due by the Testator, yet he may keep the Legacies, and never pay them perhaps, but pretend that all the Debts are not paid; and thereupon may cause Strangers to sue, and then allege that there are more Suits against them then the Goods of the Testator are sufficient to satisfy; or they may confess the Actions brought against them; and several other ways there are whereby they may defraud the Legatees of their Legacies: Therefore it were good for Testators in their lifetimes, either to secure the Legacies to the Legatees by some sure means, or otherwise in their life-time to deliver the same, that they see them possessed thereof, and not leave it to the Will of the Executor. Perkins, sect. 571.   

CHAP. IX.  
Several Cases concerning the Duty of an Executor.  
243. THere are three kinds of Executors, or persons which have to deal with the Execution of dead men's Wills, and disposition of their Goods: The first hath his Authority from the Law, and that is the Bishop or Ordinary of every Diocese, who hath the execution thereof, when no Executor is appointed by the Testator, or where the Executor doth refuse to take the Office upon him. Jo. de Canibus Tract. de Executoribus, ult. vol. part 1. q. 3. Swim. part 6. sect. 1. num. 2.  
244. The second hath his Authority from the Bishop or Ordinary, and is he whom we call an Administrator, and is put in where the Executor named refuseth, or cannot b● Executor, or when no Executor i● named in the Will; and if there b● a Will, than it must be annexed to the Letters of Administration: and such Administrator is chargeable with the performance of the Will, a● if he had been appointed by the Testator. Bro. Testament 20. and Device 35. 31 E. 3. cap. 21. and 21 H. 8. cap. 5. Swim. part 6. sect. 1.  
245. And lastly, the Executor who derives his power from the Testator, is he that is named Executor in the Testament; to whom the Execution of the Testament is committed by the dead man, and is called Executor testamentarius, and hath his Authority immediately from the Testator, and may without the Authorty of the Ordinary enter to the Testators Goods and Chattels; and after Probation of the Testament, may also Commence Suit against the Testators Debtors. Plo. come. in Case inter Griesby and Fox. Bro. Executor 49. Swim. part 6 sect. num. 4. Minsin. in tit. de Haered. Inst.  
246. When the King is made Executor of the Testament of another person, he doth not take the office upon him, but appoints certain persons to take the Execution of the Will upon them, (against whom such as have cause of Suit may bring their Action) and others he appoints to take the accounts, as appears in the Case of Catharine Queen-Dowager of England, Mother to H. 6. who constituted King H. 6. her sole Executor; and he appointed certain persons to take the charge of the Will upon them, and others to take their Accounts. Vide Rot. Parliamen. 15 H. 6. num. 32. Co. 4 part Inst. fol. 335.  
247. When a man makes several Executors, and they live in divers Dioceses, they shall all receive such benefit as accrues to them by the Testament, only by the Authority of that Judge who confirmed the Testament to them; and the same course is to be taken by the Administrators who live in several Dioceses. Refor. Leg. Ecclesiast. tit. Testament. cap. 37.  
248. Now the Office of an Executor Testamentary, doth consist in two things; that is, either in accepting or refusing the Executorship; upon both which parts there are several Cases hereafter following in this Chapter, very necessary for all Executors to know.  
249. If he that is named Executor be cited to appear before the Ordinary, and do refuse to accept the Executorship, or will not appear; then the Ordinary or other Judge may commit the Administration of the Goods of the deceased, as if he had died intestate: but if the Executor afterwards be willing to undertake the Executorship, than the Ordinary may revoke the Administration before committed: but mean acts done by the Administrator, until the Executor undertake▪ are good and effectual in Law. Bro. Exer. 49. and 101. and Admin. 32 and 33. 31 H. 8. cap. 5. Vide Griesbie and Fox's Case, ●low. come. fol. Swim. part 6. sect. 2.  
250. Note, that the Executor cannot be compelled to undertake the Office, unless he have already meded with the Testators Goods as Executor; for than he may be compeled to it: and if notwithstanding he do still refuse, and the Ordinary do commit the Administration to him; his refusal is void, and he shall be charged as Executor. And when one ●hall be said to meddle with Goods as Executor, and when not, is showed afterwards in this Chapter. Fitz. Abr. tit. Exec. num. 35. Olden de Exec. ult. Volunt. tit. 7. in fine. Swim. part 6. sect. 2. Noyes Maxims, pag. 102. Hernes Law Convey. pag. 87.  
251. Where a term is devised to an Executor, who enters, and dies before Probat; yet in such Case the entry is good Executorship, and his Administrator shall have it. M. 2● El. Dyer, fol. 367.  
252. Note, that every one to whom the Testator was indebted, shall have an Action against the Executor, so long as the Executor hath Assets in his hands; but a Debt due to the Testator shall not charge the Executor as Assets till he have received it. Terms of the Law, verb▪ Executor. Br. Exec. num. 112. Swim. part 6. sect. 3.  
253. Where there be divers Executors, the Actions Commenced by them aught to be in all their names▪ and so must the Action that is Commenced against them, name them all; except it be in Case where some of them refuse to take the Office, and the others only prove the Will; for in such Case in Actions brought against them, those only which prove the Will may be named, and the other left out. Bro. Exec. 117. Co. 9 lib. Rep. fol. 40. Noyes Max. pag. 102. Swim. part 6. sect. 20. Perkins, sect. 485.  
254. If divers be made Executors, and some of them refuse, yet he which refuseth may release any debt (before Judgement) which was due to the Testator; and it is as good as if he had never refused, and so a sufficient discharge to the Creditor; for every Executor hath an entire interest: and therefore if two as Executors have a term, and one of them grants all that to him appertains; in this Case the entire Term shall pass. Co. 5. li. fol. 28. Bro. Exec. 38, 117. Dyer, fol. 23 and 319. Swim. part 4. sect. 20. Noyes Maxims, pag. 101, 102. Perkins, sect. 485.  
255. But one Executors releasing of Debts, or selling of Goods, shall not charge the other to pay so much of the Goods, if there be not enough to pay Debts; but it shall charge the party himself that did so release or convey. Hernes Law Convey. pag. 87.  
256. Note, that the Executor which refuses, may join at any time when he will; yea, though it be not till after the death of the other Executor, wh● proved the Will; contrary to the opinion of Broke; and so the Quere in die is well resolved. 42 El. Henslowe▪ Ca Co. 9 li. fo. 39 Perkins, sect. 485▪ Dyer, fol. 360. num. 42. Bro. Exec. 92▪ 99 and 149. Swim. part 4. sect. 20▪ and part 6. sect. 3.  
257. But if divers be made Executors, and they all refuse before the Ordinary, and he grants Administration to another; in such case they cannot then afterwards prove at any time: so note the diversity between one refusing, and all refusing. 42 El. Henslowes Ca Co. 9 li. fol. 39 36 H. 6. Finches Law, pag. 171. And Vide Bewacorne and Cater's Case, Mores Rep. fol.  
258. If two be appointed Executors, and one of them refuses, and the other takes the Office upon him, and then dies, and makes his Testament, wherein he names the Executor; in this case the Executor of the Executor cannot join with the surviving Executor, neither in the execution of the first Testators Will, nor in Suits or Actions: and if the Executor of the Executor have any Goods in his hands of the first Testators, the surviving Executor may have an Action against him for the same: and if the surviving Executor do afterwards die intestate, yet cannot the Executor of the Executor meddle with the Goods of the first Testator; but Administration thereof is to be committed to the next of Kin to the Testator: and if the Executor of the Executor, or who died first, meddle with the Goods, than he may be sued by the Creditors as Executor in his own wrong. Bro. Exec. 92, 99, 149, 160. Swim. part 4. sect. 20.  
259. If one make another his Executor, and dyeth; and the Executor before he hath proved the Will, maketh another his Executor, and dyeth; in this Case Administration of the first Testators Goods, with the Will annexed, shall be committed to the next of Kin of the first Testator, and not to the Executor of the Executor, unless the first Testator did bequeath his Goods (as his Debts, Funeral-expences, and Legacies paid) to the Executor named in the Testament; and then in such case the Administration of the first Testators Goods is to be committed (with the Will annexed) to the Executor of the Executor. Dyer, fol. 372. num. 42. M. 23 El. Isteds' Ca Swim. part 6. sect. 3  
260. Note, that if divers be appointed Executors, and one of them doth sell some of the Testators Goods for a sum of money; then that Executor which sold the Goods may sue alone for the money due for the same. Swim. part 4. sect. 20. Bro. Exec. num. 65.  
261. Where divers persons are made Executors, and the Testator gives them power to sell his Lands; in this case, though some of them die, or do refuse the Executorship, yet the others who take upon them the charge and burden of the same Testament and Will, may sell the Lands, except in some Cases. Perkins, sect. 545. Pasch. 46 E. 3. Devise 8. 21 H. 8. cap. 4. 39 〈◊〉 pl. 17. Co. on Litt. fol. 113. Swim. part 6. sect. 3. Dyer, fol. 371. See Howel and Barnes case, Mich. 10 Car. 1. Cro. 1 part.  
262. As, where the Testator Deviseth, that after his death his Lands shall be sold by his Executors, with the assent of A B; maketh his Wife and a Stranger his Executors, and dyeth, and then the Wife dyeth, and A B also; in this Case the Authority of selling the Lands is extinct, and gone by the death of A B, without whose consent it cannot be sold; and therefore if the surviving Executor should sell, such sale is void. Brownlowes▪ part Rep. fol. 100 Mich. 5 Eliz. Dyer fol. 219. Fulb. fol. 41. Swim. part 6. sect. 3.  
263. But if a man Devise by his Will that A B and C D, whom he makes his Executors, shall sell his Land for payment of his Debts, and they refuse to be Executors; yet notwithstanding they may sell the Lands, because they are named by their proper names; or, if one of the Executors dyeth, and the other taketh upon him the Executorship, and afterwards selleth the Lands, such sale is good. 15 H. 7, 12. Perkins, sect. 548. 19 H. 8, 9 Swim. part 6. sect. 3.  
264. But where a man by his Will maketh A B C and D his Executors, Devises his Lands to the said A B C and D by their special names, and to their Heirs, and further deviseth that the Devisee shall sell his Lands for payment of his Debts, and one of the Executor refuses to intermeddle; in this case it hath been held that this being a special and joint interest, the other three Executors thereupon cannot sell without their Companion. Mich. 29 Eliz. B. R. Bonnisant and Sir Rich. Greenfields' case. Godbolts Rep. fol. 77. And sec 26 El. B. R. Vincent and Lees case. Co. on Litt. fol. 113.  
265. My Lord Cooks advice is to such who devise by their Wills their Lands to be sold, that they make it as certain as they can; as, that the sale be made by his Executors, or the Survivor or Survivors of them, if his meaning be so; or by such or so many of them as take upon them the Probat of the Will, etc. and it is better to give them an Authority than an Estate: unless his meaning be they should take the profits of the Lands in the mean time; and than it is necessary that he deviseth that the mean profits be assets in their hands; for otherwise they shall not be Assets. Co. on Li●t. fol. 113.  
266. If a man devise his lands to be sold by his Executors, and to distribute the profits to Pious uses, yet after the death of the Testator▪ the Inheritance shall descend to the Heir, and shall remain in him until the Executors sell the same; and the Heir ought to receive the profits thereof till the time of the sale: but if the Testator devise his lands to his Executors, which he willeth to be sold, and the money to be distributed to Pious uses, here the Executors after the Testators death shall receive the Profits, and not the Heir; for in the first case the Executors have only an Authority to sell, and in the last case they have the franktenement. Brownl. 2 part. Rep. fol. 136. Noye● Max. pag. 100, 101. 38. Ass. Pl. 3. Perkins sect. 541, and 543. Swim. part 6. sect. 3. num. 7. cowel's Inst. pag. 139.  
267. Note that the Executor of an Executor cannot sell the land of the first Testator, who by his Testament gave power to his Executor to sell the same, but it shall go to the Heir, unless the Will be otherwise. Bro. Tit. Executor 3. Perkins sect. 507, 554. Swim. part 6. sect. 3. num. 11. in fin.  
268. If a man willeth that his Executors shall jointly sell his land, or that his Executors and his Feoffees shall jointly sell his land; in such case, if one Executor sell to one, and the other to another; or if the Executors sell to one, and the Feoffees to another, and afterwards they join in the sale to a third person, in such case the last sale only is good, and the other void. Perkins sect. 546 and 553.  
269. If a man willeth his lands shall be sold for the payment of his Debts, and express not by whom it shall be sold, than the Executors shall sell it: but if he willeth his land to be sold, and express not by whom, nor for what; in such case it hath been held that such Devise is void, and the land shall not be sold, but descend to the Heir. Perkins sect. 547. 15 H. 7. 12.  
270. The Executors or Administrators of Tenants in Fee-simple, Fee-Tayl, and Tenants for term of life, of Rent-services, Rent-charges, Rent-sects, and Fee-farms, by the Stat. of 32 H. 8. may either distrain, or have an Action of Debt against such Tenant as is behind and in Arrear to the Testator at the same time of his Death, for such Arrearages of Rent as aught to have been paid to the Testator in his life-time; and if the Tenant who was in arrear be dead, than they may have an Action of Debt against his Executors or Administrators for such Arrearages. The Husband also who is seized in right of his Wife of any Estate in Fee-simple, fee-tail, Fee-farm, where any such Rents are behind in the Wife's life (whether it be before or after Marriage) and unpaid at the time of her death, may have the like remedy; and so may his Executors or Administrators. Co. on Lit. fol. 351. b. 32 H. 8. cap. 37. Swim. part 6. sect. 3 num. 8. Pasc. 23 Eliz. Dyer fol. 375.  
271. Actions of Account were given to Executors by the Stat. of Westmin. 2. and Actions of Trespass done ●o their Testator, as for his goods and Chattels carried away, were given by ●he 4 E. 3. 7. and by the 25 E. 3. Exe●utors of Executors have Actions of Debt, Account, and of goods carried way of the first Testators; and Execution of Statute-Merchants and Recognisances made to him, and are also liable to the Actions of those to ●hom the first Testator was indebted, ●o far as the goods of the first Testator will extend; but the Goods which ●id belong to the first Testator shall ●ot be put in Execution for the Debt ●f the second Testator. Wingate Abr. Stat. Tit. Executors. Co. 2 part Inst. fol. 404. Finch pag 173. Noyes Max. pag. 102. Westm. 2. c. 23. 25 E. 3. c. 5. 4 E. 3. c. 7. Swim. part 6. sect. 3. Plo. Com. fol. 286, 287.  
272. Note that one Executor cannot sue another for the possession of the Testators goods; for the possession of one is as the possession of both, and therefore one of them hath no remedy against the other but in Chancery, unless there be a Legacy lef● unto one of them in particular, and then he may sue for that. Swim. part 4. sect. 20. num. 14. Bro. Exec. 98▪ 104. F. N. B. Exec. 32. Plo. Co. fol. 343. Swim. part 6. sect. 3. num. 20▪ Tothils Rep. pag. 8.  
273. If an Infant be made Executor, Administration durante minor●aetate may be committed to the Mother or other Friend of the Infant▪ which shall cease and be void whe● the Infant comes to the age of seventeen years. 41, 42 El. C. B. Prince case. Co. 5 lib. fol. 29. Noyes Max. pag. 105.  
274. But this Administrator during such Minority, cannot sell or Alienate any of the Goods of the deceased, unless it be upon necessity; as for the payment of the deceaseds Debts, or that the goods would otherwise perish; for he hath his Office of Administrator, Pro bono & commodo Infantis, and not for his prejudice; and cannot pay Legacies, unless there be assetts to pay debts; neither can he let a Lease for a longer time than whilst the Executor shall be under age. Noyes Max. pag. 106. Co. 5 li. Rep. fol. 29.  
275. If a man make two Executors, one of seventeen years of age, and the other under; in this Case Administration during the Minority of the other is void, because he of seventeen years of age may execute the Will; and therefore if such Administrator should bring any Action, the Executor of seventeen years of age may well release the Debt. Piggot and Glascoignes ca Brownl. 1 part Rep. fol. 46.  
276. And if a Woman under the age of seventeen years be made Executrix, and the Adminstration is committed duranteminori aetate, and then she takes an Husband of full age; in such case the Administration shall cease. Co. 5 li. Rep. fol. 29.  
277. An Infant-Executor upon payment or satisfaction to him of any of the Testators Debts, may give a discharge for the same; and it is a good bar against him afterwards: but if he should give a release without payment or satisfaction; in such Case he is not barred from the recovery thereof afterwards by such release. 28 El. B. R. russel's ca Co. 5 li. fol. 27. Tr. 13 Car. 1. B. R. Kniverton and latham's ca Cro. 1 part Rep. fol. 352, 353. Noyes Max. pag. 106.  
278. If a woman during the Coverture be named Executrix, she alone can neither sue nor be sued without her Husband; but she alone may do any extrajudicial act, as the paying of Debts or Legacies, or the receiving or releasing of any Debts due to the Testator; and so may her Husband alone without her, though she alone be Executrix; which acts of his shall not only bind her during Marriage, but after also, if she outlive him. Co. 5 li. fol. 27. F. N. B. Exec. 23, 30. Bro. eod. tit. num. 147, 151, 152, 178. Kellowayes Rep. fol. 127. num. 74. Swim. part 5. sect. 1. part 6. sect. 3. num. 17.  
279. An Executor may release an Action before Probat, although that before Probat of the Will he may not have an Action; but if B release, and after take Administration, that shall not bar him; for the right of Action was not in him at the time of the release, as it was in the Executor. 1 Jac. C. B. Middleton's case. Co. 5 li. fol. 28. Perkins, sect. 482. Tr. 7 H. 4. 8. Glan. li. 7. cap. 7. Fleta, li. 2. cap. 27. Co. on Litt. fol. 292. b. 18 H. 6, 23. Hernes Law of Con. pag. 86. cowel's Inst. pag. 119.  
280. If an Executor take in the Testators Bond from one of the Creditors, and gives his own Bond for the Money; or, if the Testators Creditor be indebted to the Executor in so much as the Testator was indebted, and the Executor releases to him; in both these Cases it is a good Administration by the Executor, and they shall not be charged as assets in his hands, although in the first Case he get a longer day of payment. Pasc. 30 El. C. B. Stamp and Hutchings case. leonard's Rep. 111, 〈◊〉. See Briers and Goddards case. 〈◊〉 Rep. fol. 250. And Arlush and ●●●lisons case. Claytons' Rep. pa. 88 〈◊〉 48.  
281. But if the Executor plead ●ully Administered, and give in evidence Bonds canceled and taken in, or Acquittances for Money; this will not serve, unless there be proof of real payments made upon such Bonds and Acquittances, or of new security given. Lent-Assize, 24 Car. 1. apud Ebor. scott's case. Claytons' Rep. pag. 112 pl. 193.  
282. If there be divers Executors, and they are all sued, and one of them only pleads, yet Judgement shall be against them all, but the costs shall be against him which pleads, if the other do confess or suffer judgement to go by default. Brownl 〈…〉 pag. 274. 17 E. 3, 45. b. And 〈…〉 Jac. C. Banc. Lawry and Aldrod● 〈…〉 Brownl. 2 part Rep. fol. 183, 〈…〉 186, 187.  
283. If an Executor 〈…〉 one of the Testators 〈…〉 he plead fully Administered, 〈…〉 Jury finds assets in his hands, 〈…〉 they be but to a small value, y●● 〈◊〉 shall be condemned in the whole debt because of his false plea. M. 4 Jac. B. R. Mary Shiplyes ca Co. 8 li. fol. 134. Clerk of the Assize, pag. 65.  
284. If the Executor promise to pay a Debt of the Testators, this shall bind him, though he have not assets. Summer. Assize 16 Car. 1. ●pud Ebor. smith's ca Claytons' Rep. pag. 85. pl. 141.  
285. An Executor is not chargeable with a collateral promise made by the Testator, unless there were a breach of it in the Testators life-time. M. 1649. Christopher and Howes case. Styles Rep. fol. 141. And Pas●. 1650. B. R. Styles Regest. Practicale, pag. 121.  
286 If the Creditor make his Debtor his Executor, in this Case the Debtor proving the Will, the Debt is thereby extinguished: or, if the Creditor make his Debtor and another Executors, here though the Debtor die before he Administer as Executor, the other Executor who was not indebted surviving; yet in this Case the surviving Executor shall not have an Action for the same Debt against the Executor of his Co-executor; for that the Action was extinguished by constituting him Executor; &, Actio semel extincta, nunquam reviviscit. Quaere. Bro. Testam. 118. Plo. come. fol. 184. cowel's Inst. pag. 207. But see M. 31 Eliz. in B. R. Crosman and Reads case▪ to the contrary, leonard's Rep fol. 320.  
287. Also if two be bound in a Bond to one in a certain sum of money, and the Obligee makes one of the Obligors his Executor; this is said to be a Release in Law of the Bond and Debt: for the Action is suspended, and a personal Action once suspended is thereby extinct. Hil. 11 Jac. C. B. Friar and Gildridge ca Hob. Rep. fol. 10.  
288. If a Debtor makes his Creditor and another Executors, the Creditor if he not prove the Will nor administer, may have an Action against him that doth prove the Will for his Debt; and then afterwards he may Administer and take the Executorship upon him when he pleases: but if he take it upon him before he sue for his Debt, his Action will be thereby extinguished.  
289. If the Executor by the Will be to pay money, and no place is appointed, the parties in this case to whom it is to be paid, must make Request to the Executor to pay it, for the Executor in such case is not bound to seek the parties all over England, as it is in the case of a Bond where no place of payment is appointed. Brownl. 1 part Rep. fol. 46.  
290. If one be bound in an Obligation with Condition to pay twenty pounds to such person as the Oblige● shall name and appoint by his last Will and Testament, and the Obligee afterwards makes his Will and nominates none to whom the twenty pounds shall be paid; in this case the Executor named in the Testament may sue and recover the money. M. 11 Jac. C. B. Rot 945. Pease and Stilman against Mead. Brownlo. 1 part Rep. fol. 77.  
291. As to the payment of Debts by the Executor, he must have a care to pay them according to these following rules; otherwise it may be he shall be forced to pay some of the Testators Debts out of his own proper goods, if there be not sufficient goods of the Testators to pay all the Debts; therefore observe what follows.  
292. First Funeral-expences, than Debts to the King's Majesty, than Judgements must be paid; after them Statutes-Merchant and Recognizances, than Obligations; and if there be divers Obligations, he may pay which of them he pleases first; unless the day of payment in one Obligation be past, and the day of payment in the other Obligation not come; for then that is to be paid first where the day of payment is past; or unless one Obligation be put in suit, and the other not, for than that in suit must be first paid: and if there be two Obligations put in suit by two Creditors against the Executor, than he which first gets Judgement must first be paid; and in this case the Executor, if he will, may suffer Judgement in that which was last put in suit, and so pay him off first: then after these Obligations, simple Bills are to be paid; then Rents in arrear by the Testator; then Servants and Head-Workmens Wages; then Merchants Books; and lastly, Contracts by word, in which the Testator could not wage his Law, upon which the Executor may be sued in an Action upon the Case, upon the promise of the Testator. Bro. Exec. 172. Dr. and Stud. Li. 2. C. 10. Dyer fol. 32. Mag. Charta C. 18. Co. 2 part Inst. fol. 32. cowel's Inst. pag. 150, 151. Herns' Law con. pag. 87. Noye● Max. pag. 104. Co. 3 part. Inst. fol. 202. Swim. part 6. sect. 16. See M. 3● El. C. B. Pemberton and Barhams case, and 43 El. B. R. Bearblock and Reads ca vouched in the Saddler's case. Co. 4 lib. and Harrisons case 40 El. C. B. Co. 5 lib. fol. 28. Terms of the Law ver. Executor. Bro. Exer. 33, 87, 127, 163. Mich. 9 Jac. C B. Puncheon and Legatos case. Brown. 2 part Rep. fol 137. and Co. 9 lib. fol. 86. the same case. M. 42. 43 El. B. R. Littleton and Hebbens Ca Cro. 1 part. Rep. fol.  
293. The Executor is not chargeable for a Trespass done by the Testator, nor for his receipt for Rents, nor for occupation of Lands, as Bailiff or Guardian in Soccage; for this is no duty certain. Noys Max. pag. 103.  
294. If Executors or Administrators have not Assets in their hands to pay all the Creditors, according to these former Rules; then they must pay in order as far as the Goods and Chattels of the Testator will extend, and the rest are without remedy: but if they pay Debts to others before Debts to the King, or Bonds before Judgements, or Shop-Books before Bonds, etc. then they must pay the same over again, if there be not sufficient left to pay them who ought to have been paid according to the same order, and were omitted. Hernes Law Conu. pag. 87.  
295. If the Testator were indebted to the Executor, he may allow his own Debt before he pay other Creditors to whom the Testator was indebted in the like manner as he was to the Executor, be it by Statute, Bond, or otherwise; in case he have made an Inventary, and that he be not Executor of his own wrong; for every Creditor by such means, when the Goods be not sufficient to pay all, would strive to make himself Executor of his own wrong, to satisfy himself, and bar others; an Administrator also may stop his own Debt. Plo. come. in Woodward and Darcyes' case. M. 40. 41 El. B. R. Coulters' case. Co. 5 li. fol. 30. Ma. 6 Jac. C. B. Alexander and Lambs case. Brown. 1 part Rep. fol. 103. Swim. part 6. sect. 16. Plo. come. fol. 184.  
296. If the Testator be indebted to one in forty pounds, and the Executor pays but twenty pounds, and gets an Acquittance for the whole forty pounds; yet this Acquittance shall not prejudice any other Creditor but for twenty pounds only, and the other twenty pounds shall be assets in the Executors hands still. 8 Jac. C. B. Turner's ca Co. 8 li. fol. 132. Bro. Exec. 6. Swim. part 6. sect. 16.  
297. If a man Devise his Lands for three years to his Executors for the payment of his Debts, this shall be assets in the Executors hands: but if a man Devise his Lands to be sold for the payment of his Debts, it is no assets till it be sold, unless he express it to be so in his Will. Pasc. 9 Jac. C. B. Brownl. 1 part Rep. fol. 34. Hil. 10 Jac. C. B. Brownl. 2 part fol. 47.  
298. If a man make a Lease for years of a House, etc. reserving Rent, and the Executors after the Testators death receives the Rent, yet it is no assets in their hands; for the whole Rent belongs to the Heir. 20 El▪ Dyer, fol. 362. Plo. come. fol. 114 and 259.  
299. If an Executor or Administrator make gain of the Testators Money, that gain shall be assets in his hands. Brownlowes 1 part Rep. fol. 77.  
300. If an Executor pay Funeral-expences, or Debts of the Testators with his own Money; he may retain goods of the Testators to the same value, and they shall not charge him as assets in his hands. Cleydon and Spencer's ca Moor's Rep. fol. pl. 3. Hernes Law Con. pag. 88 Noyes Max. pag. 104. Swim. part 6. sect. 16. Dyer, fol. 2. and fol. 187.  
301. Note, where it is said before pl. 284. that an Action lies against an Executor, upon his promise to pay a Debt of the Testators; yet there ought to be a good consideration to ground the Assumpsit upon, which must be either an advantage to the Executor, or a damage to the Creditor (as forbearance till such a time▪ etc.) or else the Action will not hold. M. 2 Jac. B. R. Fisher and Richardsons' case. Cr. 2 part Rep. fol. 47. & P. 10 Jac. B. R. Booth and Crompton● case. Cro. 2 part fol. 613. and H. 16. Jac. Bog and Melins' case. Huttons Rep. fol. 27.  
302. If Judgement be given against Executors, and upon a fieri facias the Sheriff returns Nulla bona; in such case the plaintiff may have another special Writ of fieri facias directed to the Sheriff, that he levy the Debt of the Testators goods, and if it appear to him that the Executors have wasted the goods; then that he levy the same of the Executors own proper goods. H. 45 El. B. R● Pettisers case. Co. 5 lib. Rep fol. 32. and Tr. 16 Car. 1. B. R. King and Hiltons' case. Cr. 1 part Rep. fol. 438.  
303. A man was bound in an Obligation with condition for the performance of Covenants, and dies; after whose death his Executors break Covenants, and the Bond being sued, it was moved that Execution might be of the Executors own goods, because the breach of the Condition was the Executors own Act. But the Court denied it, and Judgement was entered debonis Testatoris. Tr. 17 Jac. C. 〈◊〉 Rot 1849. Castilion and Exec. of Smith's case. hobart's Rep. fol. 283.  
304. If an Executor or Administrator be sued for a Debt of the Testators, and he knoweth of a Judgement, or other Debt upon Record against the Testator; if the Executor have no more goods then will satisfy the same, than he may well plead this special matter, and it shall bar the party that sues, for it shall be taken for a pl●ne Administravit: and if the Executor should pay the party that sues before the Judgement, it will be a Devastavit, and he will be forced then to pay the Judgement out of his own proper goods, as is showed before, pl. 292. Hil. 7 Ed. 6. Dyer fol. 79. P. 12 Jac. C. B. Moon and Andrew's ca Hobart Rep. fol. 133. Tr. 15 Jac. C. B. Rot. 2119. Kydd and Chynelyes' case. hobart's Rep. fol. 218. Scarles case in Mores Abr. p. 191. pl. 877. and Barracloughs c. Clayt. Rep. 65. pl. 112.  
305. If an Executor be not minded to take upon him the Office of Executor, than it behoves him not to meddle with any of the Testators Goods; for if he once Administer of the Goods of the deceased, and make use of them, by selling the Goods, or killing any of the Cattle; or, if he pay any of the Testators Debts, or receive any Debts due to the Testator, and give Acquittances for the same, with other like acts; in such Case he shall be said to Administer as Executor, and may be compelled to stand to the Executorship. Hil. 8 Jac. C. B. in Wickenden and Thomas case. Brownlowes 2 part Rep. fol. 58. Bro. Ex. 49. Fitz. Exec. 38. Stokes and Porters ca Mores Rep. fol. Noys Max. p. 102. Tr. 13 Eliz. C. B. Hawkins and Laws ca Leon. Rep. fol. 155. Swim. part 6. sect. 22. Porter's case. Dyer, fol. 166.  
306. If a Stranger who is neither Executor nor Administrator enter upon the Goods, as aforesaid; this shall charge him as Executor of his own wrong, and he may be sued by the Creditors of the person deceased: but after the Will is proved, or Administration granted, and they have intermeddled with the Goods than the Stranger cannot be sued, because there is another Executor of right, against whom the Creditor may bring his Action, and is chargeable as far as those Goods will extend which are come to his hands after he hath assumed upon him the charge of the Executorship: but notwithstanding all this, that there be an Executor which doth Administer, ye● if the Stranger will still take the Goods, and claim to be Executor, and pay Debts or Legacies, or receive Debts; in such case it is said he may be charged as Executor in his own wrong, although there be another Executor of right: Quia os suu● contra se aperuit; nam expressa nocent, quae tacita non nocent. 2 Ja● C. B. Reads case. Co. 5 li. fol. 33, 34. Swim. part 6. sect. 22. M. 3 Car. ● Whitmore and Porter's case. Cro. 1 part Rep. fol. Vide ●r. 12 Jac. C. B. Rot 4087. Keeble and Osbastons case. hobart's Rep. fol. 49. And Chandler and Thompson's case, 262. Bro. 2 part Rep. fol. 185.  
307. Note, that an Executor of his own wrong is chargeable no further than the value of the Goods which come to his hands, and with which he hath intermeddled. Brownlowes 2 part Rep. fol. 185. Mich. 23 Car. 1. B. R. Styles Repracticale, pag. 120.  
308. If a man do only perform deeds of Charity, as to feed the Cattle of the deceased, lest they should perish, or take into his custody the Goods lest they should be stolen, or dispose of the Goods about the Funeral of the Testator; these acts do not charge a man as Executor of his own wrong. Frane. Mantica de conject. ult. Volunt. li. 12. tit. 9 num. 18. Fitz. Exec. num. 38, 45. Bro. Admin. num. 6, 28. Swim. part 6. sect. 22. Brownlowes Rep. 2 part fol. 184. Hil. 1 El. C. B. Dyer, fol. 166. Noyes Max. pag. 102.  
309. Where servants after the death of their Lords or Masters do imbezil their Goods, after full infortion thereof made to the Lord Chancellor by the Executors, or two of them, of such spoil made, the said Lord Chancellor by advice of the two Chief Justices and Chief Baron, or two of them, shall have power to make such Writs to be directed to such Sheriffs as to them shall seem fit, to make Proclamation in such places within twelve days after the delivery of the said Writs, as to the said Chancellor by advice aforesaid shall seem reasonable, that the Offenders appear in the King's Bench at the day limited in the Writ; which Proclamation shall be made fifteen days before the day of appearance, when if the Offender appear not, he shall be attainted of Felony; and if he appear, the Justices shall commit him to prison, there to remain until he have answered the Executors in their Actions, and the same Actions be determined; provided that they be pursued with effect, and not slackly: but if the Offenders procure two sufficient men to be bound with them in Recognizance to the Executors in the same Court where they stand committed, to keep such day as they shall have by the Court, than the Justices there may bail them; and if the Gaoler let them go at liberty without the Justice's Order, he forfeits forty pounds. Stat. 33 H. 6. cap. 1. Wingates Abr. Stat. tit. Executors.  
310. If any person shall obtain any Goods or Debts of an Intestate, or Releases or other discharge of any Debt or Duty, (which belonged to the Intestate) by fraud, (as by procuring the Administration to be granted to a Stranger of mean Estate, and not to be found, with in●ent thereby to obtain the Intestates Estate) and not upon valuable consideration, or in satisfaction of some just Debt, answerable to the value of the Goods so obtained; in such Case such person shall be chargeable as Excutor of his own wrong, so far as the value of the Goods or Debts so obtained shall amount unto: howbeit, he shall also be allowed such reasonable deductions, as other Executors or Administrators ought to have. 49 El. cap. 8. Winga. Abr. Stat. tit. Executors.  
311. Note, that the time wherein he that is named Executor in the Testament is to deliberate and determine whether he will accept or refuse the Executorship, is left to the discretion of the Ordinary, who not only within the year (allowed by the Civi● Law) but within a Month or two may cite him to accept or refuse the Office. Swim. part 6. sect. 4. Refor. L●gum Eccles. tit. de Testamentis, cap. 34▪ pag. 143.   

CHAP. X.  
Of making of an Inventary, proving of the Will, with the Fees thereof, and before whom it ought to be proved; and of passing an Account, and paying of Mortuaries.  
312. WHen an Executor intends to accept of the Office, it behoves him to make an Inventary of the Testators Goods; for if he meddle with the Goods, and refuse to make an Inventary, he may be punished by the Ordinary; but he may meddle with the Goods as to the discharging of Funerals, or disposing of such things as cannot be preserved and kept till the time of making the Inventary. Swim. part 6. sect. 6 and 8. 21 H. 8. cap. 5.  
313. And as for the time of making the Inventary, it is left to the discretion of the Ordinary, who may appoint a longer or shorter time, according as the distance of the place where the Goods remain, or other circumstances shall minister occasion. Lyndwood in C. Stat. verb. Arbitrio. Swim. part 6. sect. 8. num. 1.  
314. And as for the form thereof, it ought to be made by two at the least, to whom the Intestate was indebted, or left any Legacy; and upon their refusal or absence, two or more other honest men may by the Executors appointment make the Inventary of all the Goods and Chattels, Rights, Wares and Merchandises as well movable as not movable whatsoever, that were of the person deceased; and the same must be Indented, whereof one part is to remain with the Executor, and the other with the Ordinary, where the Executor must swear that the same is true: and the usual course in making of such Inventaries, is first to set down movable Goods, beginning with his Purse and Apparel; then Householdstuff as it stands in every Room, beginning in the Hall, and so from Room to Room in order throughout the House; then Corn in the Barns or Garners, or ready sown in the Fields; then Cattle, Husband-geer, as Ploughs, Carts, etc. then in movable Goods, as Leases of Lands or Tenements; and after that, the Debts due to the Testator; and oftentimes, at the lower end of all, the Debts owing by the Testator to other persons. 21 H. 8. C. 5. Franc. Porcel. Trac. de Inve. Swim part 6. sect. 9 Refor. Legum Eccles. C. de Testamentis, sect. 20.  
315. Note, that the Goods in the Inventary aught to be particularly prized and valued according to reasonable prizes, and not huddled up together several things in a gross sum: but those Goods which do belong to the Heir after the Testators death, must not be put into the Inventary; neither may those Goods called Bonae Peraphernalia, (which is the Wives convenient Apparel agreeable to her Quality) be put into the Inventary: nay, such is the general custom within the Province of York, that Widows are there not only tolerated to reserve to their own use their convenient Apparel, and a convenient Bed and Furniture; but also a Coffe● or Box with divers things therein, as Jewels, Chains, Borders, and other things necessary for their own persons. Swim. part 6. sect. 9 num. 5. Johannes Garsi. Tract. de expensis, fol. 182. Perkins, sect. 526. Noyes Max. pag. 107. Swim. part 6. sect. 7.  
316. Certain Jewels to the value of 500 Marks, were allowed to a Viscountess, as her Peraphernalia, and accounted but a reasonable allowance for one of her degree. Viscountess Bindons' case. Abr. Mores Rep. pag. 72. pl. 338.  
317. But note, if the rest of the Goods will not suffice to pay the Husband's Debts than are the Wives Jewels, Chains, Borders, and suchlike, (being things of Decency or Ornament, and not of Necessity) to be put into the Inventary amongst other Goods of the deceased, towards the payment of his Debts. Swim. part 6. sect. 7. num. 5. in fin.  
318. Note also, that the Husband may Devise such Chains and Jewels, etc. though he leave sufficient Assets besides to pay his Debts; and in such case the Wife shall not have them as her Peraphernalia▪ but if the Husband make no Gift or Devise of them, and leave Assets besides to pay his Debts; then the Wife in such case may keep them in despite of the Executors or Administrators. Tr. 8 Car. 1. B. R. Lord Hastings and Sir Archibald Douglas ca Cro. 1 part Rep. fol. 251, 252, 253. And See Davenports ca 5 Car. 1 in Chancery. Compl. Attor. pag. 305.  
319. If any Creditor or Legatary do affirm that more Goods came to the Executors hands, then are named in the Inventary, he must prove it; for otherwise Credit is to be given to the Inventary. Maschard. de probac. Conclusio 939. Swim. part 6. sect. 10. Reforma. Legum Ecclesiast. tit. de Testamentis, cap 21.  
320. If there be several Executors, and one of them exhibits an Inventary; this shall not charge the other in an Action brought against them; but the party that sues must prove that such Executor hath actually Administered, and that Goods came to his hands, or else he shall not be charged. Lent Assizes apud Ebor. 8 Car. 1. Ireland's case. Claytons' Rep. pag. 106. pl. 179.  
321. After an Inventary made as afore declared, than the Executor is to prove the Testament before the Ordinary, or other Judge to whom the Probat thereof belongs; and if the same be not in the Executors possession, but in some others hand, than he may cite such person before the Ordinary, and force him to exhibit the same. Perkins, sect. 486. Swim. part 6. sect. 12.  
322. Note, that all Testaments ought to be proved before the Ordinary, except in spiritual places, where the Lords have the Probat of their Tenants Testaments before their Stewards or themselves, in their Temporal Courts. Perkins, sect. 486.  
323. If a Lord would have the Probat of a Testament made within the precinct of his Manor, he cannot prove a Testament made without the said precinct. 2 R. 2. Testament. 4. 11 H. 7. fol. 12. Co. 2 part Inst. fol. 231.  
324. A Testament proved before the Commissary of the Bishop, or before any Officer of the Ordinary deputed to the same, is sufficient; or if it be before the Sequestrators of the Archdeacon of such a place, and his Seal put thereunto, it is sufficient: for all Testaments cannot be proved before the Ordinary himself; and properly the Probat of the Will doth belong unto him to whom the Sequestration doth belong. 3 E. 3. Testamen. 5. 1 Hen. 6. 1. 11 H. 4. 64. Perkins Sect. 490, 491. Tr. 7 E. 4. fol. 14. a.  
325. A Testament after it is proved, is of so great force, that a man shall have no direct Travese against it, because it being to be tried by the Certificate of the Ordinary, it is supposed that he will not certify contrary to that which is showed unto the Court under his Seal: but if a man be sued by an Executor after Probat, though he can have no Traverse to the Testament, yet he may say that the Testator made not the Plaintiff Executor. 18 E. 2. Testamen. 6. Perkins, sect. 493.  
326. Note, that the proving of the Testament is done two manner of ways; either by common form, or form of Law: the common form is, when the Executor after the Testators death presents the Testament to the Judge, and produceth Witnesses to prove the same viva voce, without citing or calling of such as have interest therein; and thereupon the Judge doth annex his Seal to the Testament. 21 H. 8. C. 5. the Castr. Consil. 99 vol. 1. Swim. part 6. sect. 14.  
327. When it is proved in form of Law, than the Widow or next of Kin to the deceased, to whom Administration should belong if the party had died Intestate, are cited to be present, and the Will is exhibited, and the Witnesses examined privately every one of them, as well to the Articles exhibited on the Executors part, as to the Interrogatories Administered on the Widow or other adverse party's behalf; and so according to the sufficiency of the proof, the Judge doth pronounce either for the validity of the Testament, or against it, according to his discretion. Paul. de Castr. Con. 96. vol. 1. Swim. part 6. sect. 14. num. 3.  
328. When a Testament is proved after the common form, the parties interested may force the Executor to prove it over again in due form of Law, which may endanger the Testament if the Witnesses be dead in the mean time; unless it be after ten years' space, for than it shall be presumed, that necessary solemnities have been observed: but on the contrary, if it be once proved in form of Law, the Executor is not compellable to prove the same any more. Socin. Jun. Consil. 89. vol. 1, Swim. part 6. sect. 14. Paul. de Cast Consil. 96. vol. 1. And Simo de Praetis. Interp. ult. Volunt. li 2. Dub. 2. Soluc. 3. sect. 207. num. 4 and 5.  
329. Note, when any one intends to plead any thing against the validity of a Testament, they ought to do it at the time of the proving it, or within a year after, unless they were at such time Infants, or in Travel beyond the Seas, so as they could hear nothing of it; and then they shall have six months after their return from Travel to plead against it, and the Minors a year after they come to full age: and if such parties exceed their limited times, than they are excluded from any remedy, unless it be in case where the Testament was not at first proved in form of Law, but after the common form; for than they may cause the Testament to be proved over again at any time within ten years, and allege what they can against it. Refor. Leg. Eccles. tit. de Testamentis, cap. 6.  
330. If any shall exhibit a false Testament, or any ways pervert a true Testament, by adding, diminishing, changing, or interlining the same, and is openly convinced of such crime; they shall thereby be excluded from all benefit accrueing to them by such Testament. Refor. Legum Eccles. tit. de Testamentis, cap. 39  
331. If an Executor or Administrator be ancient, sickly, or live far distant from the Court where he should have the Probat of the Will, or Letters of Administration; then he may in such case have a Commission directed to two Neighbour-Ministers to take his Oath, and upon return thereof have the Probat under Seal.  
332. As touching the Fees taken for Probat of Wills, etc. they vary according to the custom of several places; but where the Inventary exceeds forty pounds, the usual Fees are between five Nobles and forty shillings, if it be by Commission; and if it be not by Commission, but that the Executor go himself to the Ordinary, or other Ecclesiastical Judge, who hath the granting of the same; than it will not cost so much by 13 s. 4 d. or there abouts.  
333. But if these Officers could be brought to walk by the Rules of the Statute, the Fees would be far less; for by the Stat. of the 21 H. 8. cap. 5. it is enacted, That if the goods of the Testator do not exceed five pounds, that then there is only due to the Scribe for writing the Probat of the Testament, six pence, but nothing to the Ordinary or his Official, etc. for the Probat thereof and putting to his Seal: but then the Testament must be exhibited to him in writing, with wax thereunto affixed ready to be sealed and proved Communi forma; and in such case he is to dispatch the party without delay: and no more is due than six pence for granting Administration, where the Intestates goods do not exceed five pounds, as abovesaid. Wingates Abr. Stat. tit. Prob. of Testam. num. 2. 21 H. 8. C. 5. Swim. part 6. sect. 15.  
334. When the goods of the deceased exceeds five pounds, and are under forty pounds; then there is due to the Ordinary for the Probat two shillings and six pence, and to the Scribe for Registering the same one shilling; and where the goods exceed forty pounds, than there is due to the Ordinary for the Probat two shillings and six pence, as above said; and two shillings and six pence to the Scribe for Registering of the same; or the Register may refuse two shillings and six pence, and take a penny for every ten lines of the Testament, each line being to contain ten Inches in the length: but note, that in all these cases the Will must be brought to the Ordinary ready Ingrossed with wax at the same, if you intent to tie him to the Fees above said. Swim. part 6. sect. 15. Refor. Legum Ecc. tit. de Test. C. 17. Wingates Abr. Stat. tit. Prob. of Testaments, num. 3. 21 H. 8. cap. 5.  
335. The Fees either for the copy of the Will or Inventary, are the same as are allowed for Registering the Will; or the Register may refuse the same, and take a penny for every ten lines for the length as aforesaid. The Officer that takes more than his just Fee, shall forfeit that excess to the party grieved, and ten pounds besides, to be divided betwixt the King and the party that will sue for the same in any of the King's Courts.  
336. Where by custom less hath been taken in any of the cases aforesaid, there less is to be taken still, notwithstanding the Act of the 21 H. 8. Wingates Abr. Stat. tit. Probat of Test. num. 11. Swim. part 6. sect. 15. num. 4. 21 H. 8. cap. 5.  
337. If a Testament be in Paper, and the Executor desires that the same shall be transcribed and engrossed in Parchment; then he must agree with the Clerk for transcribing the same as cheap as he can; and when both are brought to the Ordinary, it is in his choice whether he will put his Seal and Probat to the Original or Transcript▪ but there is nothing due to the Ordinary for the Transcript, nor for examining the same with the Original; but only for affixing his Seal and Probat, he shall take such Fees as is afore declared. Co. 3 part Inst. fol. 149, 150. chap. Extortion.  
338. And If any Ordinary or his Official, etc. exact greater Fees than these above mentioned, it is Extortion, and so it was adjudged by the whole Court of Common Bench, Mich. 6 Jac. upon an information against one Rowse Commissary of the Archdeacon of Huntingdon, at the suit of one Neal, which was for taking a Fee for engrossing the Probat upon the Transcript of the Testament, over and above his lawful Fee due by the 21 H. 8. above mentioned: and if this precedent were put into practice, the Probat of Testaments and granting Administrations would not be so chargeable as in most places at this day they are. Mich. 6 Jac. C. B. Rot 1301. Neal and Rowse case. Co. 4. part Inst. fol. 336.  
339. When a Will where Lands are devised comes to be proved in the Prerogative-Court, they ought only to take a Copy thereof into their Leiger-Book, and deliver the Original to the Legatee of the Lands to support his Title by, if he be questioned for the same. Mich. 1649. B. R. Styles Regest. Practicale, pag. 358.  
340. If a man be long absent, and it be not known whether he be alive or dead; if he have made a Will, it may be proved; especially if it be reported that he is dead, and that the party absent were sickly, and a very old man when he went away, or the like. Mischard, de probac. Conclusio 1074. num. 4. Swim. part 6. sect. 13.  
341. Note, that if the party dying have at the time of his death goods or good debts in any other Diocese or Dioceses, or peculiar jurisdiction within that Province, besides those goods in the place where he dies, amounting to the value of five pounds at the least; then the Probat of such Will, or granting Administration, belongs to the Archbishop or Metropolitan of that Province, whether it be within the Province of Canterbury or York; this does not prejudice those Dioceses where by composition or custom Bona Notabilia are rated at a greater sum. Book of Canons, pub. 1 Jac. Anno Domin● 1603. Can. 92 and 93. Perkins, sect. 489.  
342. And if the Executor or Administrator cited or appearing voluntarily before the Judge (appointed for Probat of Wills, etc. within such Diocese or peculiar Jurisdiction where the party died) do upon his Oath affirm that the party deceased had goods or good debts to the value of five pounds aforesaid, in any other Diocese or Dioceses, or peculiar Jurisdiction within the said Province; then is the Judge to dismiss him, and admonish him to prove the said Will, or require Administration of the goods in the Prerogative Court of the Archbishop of the Province, and afterwards to exhibit the Probat or Administration under Seal of the said Prerogative-Court before him the said Judge within forty days then next following: and the said Judge so dismissing the party as aforesaid, shall not exact or take any charges of the said parti●●● more than su●h only as are due for the Citation, and other Process had and used against such persons upon their contumacy: and if any Judge or their Register shall offend herein, he is to be suspended from his Office ipso facto, and not to be absolved till he have paid to the party all his expenses laid out contrary to the Tenor of the premises. Book Can. 1 Jac. An. Dom. 1603. Can. 92 and 93. Swim. part 6. sect. 11.  
343. Note, that the probat of every Bishop's Testament, or granting Administration of his Goods (although he have no Goods but within his own Jurisdiction where he was Bishop) doth belong to the Archbishop within whose Province the party deceased was Bishop. Co. 4 part. Inst. fol. 335.  
344. If any Ordinary of a Diocese, or Commissary of a peculiar Jurisdiction commit Administration of his Goods that hath Bona Notabilia as aforesaid in divers Dioceses, it is utterly void to all intents and purposes, aswell concerning Goods in his own Diocese as elsewhere. But if the Metropolitan do commit Administration, supposing the party deceased to have Bona Notabilia, whereas he hath but Goods only in one inferior Diocese; this Administration is no● v●yd, but only voidable by Sentence, for that the Metropolitan hath Jurisdiction over all the Dioceses within his Province. 22 El. ●. ●. Veer and Jeffer●es Ca vouched in Co. 5 li foe 30. in Prince's case, and Moors Rep. the same case.  
345. Note, that in former times (when Popery and Idolatry reigned in this Kingdom) every Executor or Administrator was to pass his Account to the Ordinary, how he had performed his Office; and if any thing remained in the Executors hands after the payment of the Testators Debts, than the Ordinary used to appoint the payment of such Residue to Pious uses: but this is now of little use; for at this day the Ordinary cannot compel the Executor to make such distribution; for if any thing remain, the Executor or Administrator may keep the same, and convert it to their own use. Swim. part 6. sect. 20. num. 2.  
246. Upon the passing an Account as aforesaid it was usual to call the Creditors to whom the Testator was indebted, and also the Legataries, and all others having interest, before the Ordinary to whom the Probation appertained; and they were to hear the Account: and if it appeared to the Ordinary that the Executor had faithfully executed his Office, and fully Administered; then he might acquit the Executor, and give Letters of discharge from being any further troubled, at least in the Ecclesiastical Court: but if the Account were made in the Creditors absence, and they never called, such Account doth not prejudice them. Swim. part 6. sect. 20. Lindwood in C. Statut. sect. E●postquam verb. Ordinariis.  
347. And if any inferior Judge under the degree of a Bishop, should grant unto any Executor Letters o● Acquittance or final Discharge before a Lawful Account made, that Judge is ipso facto suspended ab ingressu Ecclesiae by the space of six Months, and the Executor doth receive no benefit by such acquittance. Lind wood in D. C. in sin. verb. Acquietantiarum. Swim. part. 6. sect. 21. num. 3.  
348. As touching Mortuaries, it i● enacted by Authority of Parliament, That no Parson, Vicar, Curate, Parish-Priest, nor any other Spiritual Parson, nor their Farmers or Leassees, shall demand any Mortuary for any person dying, but in such places only where Mortuaries have been used to be paid and given in those places, according to the rates hereafter mentioned; and that no person pay in more places than one, and that is in the place of their most dwelling or habitation. 21 H. 8. C. 6. Swim. part 6. sect. 16. Wingate Abr. Stat. Tit. Mortuaries.  
349. If a Person at the time of his Death be not worth in Movable Goods to the value of ten Marks, no Mortuary is then due; if he be worth ●en Marks or more, clearly above his Debts paid, and under thirty pounds or above, and under forty pounds, ●hen a Noble is due; and if he be worth forty pounds or above, to any sum whatsoever, than ten shillings is due: ●nd if any of the Persons before named take more than is here set down, ●hey forfeit forty shillings, and so much more as they took more than their due: and in such places where ●●ss hath been accustomed to be paid, ●o person shall be compelled to pay more than according to the custom ●n such place. Wingates Abr. Statut. ●it. Mortuaries▪ 21 H. 8. C. 6. Swim. part 6. sect. 16.  
350. Note, that no Mortuary is 〈◊〉 be paid for a Woman being Cover● Baron, nor for a Child, nor for any person not keeping house; and if 〈◊〉 way-faring man die, his Mortuary i● to be paid in such a place where he had the most habitation, if Mortuaries be accustomed to be paid in such place. Wingates Abr. Stat. Mortuaries. 21 H. 8. C. 6. Swim. part 6. sect. 16.  
351. The Bishops of Bangor, Landaff, St. david's, and St. Asaph, and the Archdeacon of Chester, may take such Mortuaries of their Priests within their Dioceses and Jurisdictions as heretofore hath been accustomed▪ 21 H. 8. C. 6. Swim. part 6. sect. 16. Wingates Abr. Stat. Tit. Mortuaries.  
352. Where Mortuaries are due they are to be paid out of the death▪ part only, and not out of the whole before Division, where the Widow and Children are to have their reasonable parts; and such Mortuary is to be paid before any other Legacy whatsoever. Hostiens▪ in C. conquerente de Offic. Ordin. verb. Mortuar. Swim. part 6. sect. 16. in fin.   

CHAP. XI.  
Of the Power of the Ordinary in granting Administrations, and some few Cases touching Appeals, and also of the Office of an Administrator, and how far the Ordinary is chargeable for the Intestates Debts.  
353. ORdinary in the usual and common sense signifieth a Bishop, and is derived ab ordine; but generally by the Law Ordinarius is not only taken for a Bishop, but every one that is in loco Episcopi, as Guardians of the Spiritualities, and such as have peculiar and exempt jurisdiction Ecclesiastical, and be immediate Officers to the King's Courts of Justice. Co. on Litt. fol. 344. 18 El. Dyer, fol. 350. Regist. fol. 67. Co. 2 part Inst. fol 398.  
354. If a Caveat be entered with the Bishop, that he should not admit any without giving notice; yet notwithstanding he may admit one to the Administration: but if it be one who hath no right that is admitted, he is then a disturber; otherwise the Caveat doth nothing but only to make the Bishop careful what person he admits. Brownlowes Rep. 2 part fol. 119.  
355. The Ordinary is to commit Administration of the goods of one dying Intestate to the goods or to the next of his blood, if they will accept it, or to both: and where divers are next of blood, and in equality of degree, and do claim Administration; in such case he may grant it to which of them he pleaseth: or, where one claimeth as next of blood to the Intestate, where in truth divers are in equality of Kindred; here the Ordinary shall be at his choice to accept one or more making Request: and where but one or more, and not all are in equality of Kindred, and do make Request, the Ordinary is at liberty to admit the Widow, and him or those only making Request, or any one of them, at his pleasure: and if the Ordinary do not observe these Rules, he forfeits ten pounds, by the 21 H. 8. c. 5. 21 H. 8. c. 5. Fynch li. 2. c. 15. pag. 174, 175. Noyes Max. pag. 105. Styles Regest. practicale, pag. 22. Mich. 24 Car. 1. B. R. Reformat. Legum Ecclesiast. tit. de Testamentis, c. 42.  
356. One of the half-blood is in as equal degree of Kindred, to have the Letters of Administration committed to him, as one of the whole blood is. Mich. 23 Car. 1. B. R. Styles Rep. fol. 74, 75. and Pasch. 24. c. 1. B. R. Hill and Bride's case. Styles fol. 102.  
357. If the Ordinary take any Reward or Fee for preferring of any one person before another to the Administration, it is Bribery, and punishable with Fine and Imprisonment at the King's pleasure, and frequently loss of their place. Co. 3 part Inst. fol. 148. cap. Bribery in fine.  
358. When the Widow or next of ●in are cited and refuse the Administration, than the Ordinary may grant it to some of the Creditors, or to some other such as he thinks fit. Hernes Law of Conveyances, pag. 86.  
359. Where divers are made Administrators, they have but one joint Interest, and therefore one of them cannot discharge a Debt by himself in prejudice of the others, as one Excutor may do, as is showed before in the ninth Chapter; but in such case all the Administrators must join. Herns' Law Convey. pag. 88  
360. If Administration be unduly gra●●ed to such a person as ought not to have the same; in such case the Ordinary may revoke the same afterwards: but if it be duly granted to those who of right aught to have the same, than he cannot lawfully revoke it; and if there be a suit depending to that purpose in the Spiritual Court, a Prohibition will be granted. Clerks ca M. 20 Jac. B. R. Rot 2196. Vide Cro. 1 part, Fotherbies ca and Pasc. 21 Car. 1. B. R. Bettesworth and Bettesworths' case. Styles Rep. fol. 10.  
361. If Administration be unduly granted by the Ordinary of an inferior Diocese, the party grieved cannot have a Prohibition at the Common Law, but he must appeal to the Metropolitan or Archbishop of the Province, from thence to the Court of Delegates; for the Stat. of 21 H. 8. doth not say that the Administration shall be committed to the next of blood, or else the Administration to be void; but that it shall be granted on such a pain: and so it doth not take away the Cognizance of the Case from the Ecclesiastical Judge. P. 1 Car. 1. B. R. Mayowes ca Latches Rep. fo. 67. M. 24 Car. 1. B. R. Browne and Poynes case. Styles Rep. fol. 147.  
362. If one die Intestate, and the Ordinary grants Administration to a Stranger, and the next of Kin sues a Citation out of the Spiritual Court to have the Administration revoked, and pending the Suit the Administrator sells the goods to defeat the next of Kin, and then the Letters of Administration granted to the Stranger are revoked and made Null by Sentence; yet in this case the sale by the first Administrator is good: but if the next of Kin had appealed to have the Administration revoked, and pending the appeal the first Admiministrator sells his goods; then in such case the sale is void: and so note the difference between a Suit by Citation to revoke a former Administration, and an appeal; for an appeal doth suspend the former Sentence. 37 El. B. R. Packmans' case. Co. 6 two. fol. 28. Vide Harlings case. Claytons' Rep. 25.  
363. Where an appeal is made, and the first Administration is confirmed, than the use is to send back the Cause to the Court from whence it came by appeal: but when the first sentence is reversed, than the first Court is outed of its jurisdiction, and the Court which reverses it shall commit the Administration de novo. P. 1 Car. 1. B. R. Reeve and Dennyesca. Latch. 85.  
364. Appeals in Cases Testamenry, Matrimony and Tithes, must be sued from the Archdeacon or Official (if the matter be there commenced) to the Bishop of the Diocese; and from the Bishop Diocesan, or his Commissary in such Case, (or when the matter is there commenced) within fifteen days after sentence given, to the Archbishop of the Province and no farther, but there to be definitively adjudged. See num. 368. 24. H. 8 c. 12. Wing. Abr. Stat. tit. Appeals to Rome, num. 5. Co. 4 part Inst. fol. 339.  
365. When the Cause is commenced before the , or Commissary of the Archbishop, the appeal may be made (within fifteen days after sentence given) to the Court of Audience of the said Archbishop; and from thence within fifteen days after sentence, there to the Archbishop himself, and no further: when the Cause is commenced before the Archbishop himself, it was to be determined there without further appeal, by the Stat. 24. H. 8. c. 12. 24 H. 8. c. 12. Wing. Abr. Stat. tit. Appeals to Rome num. 6 and 7. Co. 4. part Inst. fol. 339.  
366. But see the Stat. 25 H. 8. where it is added further, that appeals shall be from the Archbishops Courts to the King in his Chancery, where a Commission shall be awarded under the Great Seal to certain persons to be named by the King, for the determination of the said appeals, and from thence no further; and these Commissioners are called Delegates, because they are delegated by the King's Commission. Co. 4. part Inst. fol. 339, 340. 25 H. 8. c. 19 Wingates Abr. Stat. tit. Appeals to Rome, num. 4.  
367. When the Cause or Suit concerns the King, the party grieved may (within 15 days after sentence given) appeal from any of the said Courts Ecclesiastical to the higher Convocation-house of that Province, and no further; and there to be finally determined. 24 H. 8 c. 12. Co. 4 part Inst. fol. 323 and 339. in fine.  
368. Appeals from places exempt which were before to the See of Rome, shall be into the Chancery ut supra, and not to the Archbishop; and shall be determined by the Delegates. 25 H. 8. c. 19 Co. 4 part Inst. fol. 340.  
369. But note, that where it is said in the case aforesaid, upon the Stat. of the 24 and 25 H. 8. that the sentence shall be definitive upon certain appeals there mentioned; yet notwithstanding, the King as Supreme Head, upon complaint to him made, may grant a Commission of Review; for so the Pope used to do as Supreme Head; and the same power which the Pope had formerly, doth now of right belong to the Crown, and is annexed thereunto by the 26 H. 8. c. 1. and 1 Eliz. c. 1. And so it was resolved, Tr. 39 El. B. R. where the case was, that sentence being in an Ecclesiastical cause in the Country, the party grieved appealed to the Archbishop where the first sentence was affirmed; from thence he appealed to the Delegates, before whom both the former sentences were repealed, and made void by definitive sentence: and thereupon the Queen as Supreme Head granted a Commission of Review ad Revidendum the sentence of the Delegates. Co. 4 part Inst. fol. 341. Tr. 39 tit. B. R. Hollingworths' case. Ras●al Rome 389.  
370. If the Ordinary knowing that there is a Testament and an Executor named therein, will notwithstanding grant Administration of the deceaseds Goods, not having first called the Executor before him to prove the Will, or to accept or refuse the Executorship; then in such case, when the Excutor shall prove the Will, he may sue the Administrator in an Action of Trespass, notwithstanding the Administration granted by the Ordinary. Swim. part 6. sect. ●.  
371. If a man be Executor to one who was Administrator to another man, in this case he shall not have administration of such Goods as his Testator had by virtue of the Administration; but the Administration thereof shall be committed to the next of Kin to him that died first. Vide H. 43. El. C. B. Thorns case. golds. Rep. pag. 182. pl. 118. Hernes Law Convey. pag. 88 Fitz. Abr. Tit. Admin. num. 3. Swim. part. 6. sect. 3. num. 12.  
372. If an Executor in an Action brought by him recovereth, and afterwards dyeth Intestate, and then Administration of the Goods of the first Testator is committed to J. S. in this case J. S. before the Stat. of the 17. Car. 2. could not sue out Execution upon such Recovery, but was to begin a new; because he comes in paramount to the Executor, and claims immediately from the first Testator: but see now the late Act made at Oxford 17 Car. 2. for avoiding of unnecessary suits and delays, it stands on continuance for five years, and from thence to the end of the next Session of Parliament. Co. 5 lib. fol. 9 in Brudenels ca Cro. 2 part. You're and Goughs ca 1 Jac. B. R. and M. 4. Car. 1. B. R. Snape and Norgate● ca Cro. 3 part, and Moors Rep. Levet and Lewkners' case: but see now the Statute at Oxford 17 Car. 2. for avoiding unnecessary suits and delays.  
373. If an Administrator during Minority of an Infant-Executor, recover in Debt, and the Executor comes to age before Execution taken out; in such case he may sue out a special Scire facias upon the Record, and so sue out Execution in his own name. Vide 27 H. 8. fol. 7. a. brownlow's Rep. 2 part pag. 83, 84.  
374. An Administrator is not liable to an Action for a Debt upon a Contract of the Intestates. Mich. 30, 31 El. B. R. Hughsons and Webs ca Cro. 1 part.  
375. But if the Administrator after the Intestates death promise to pay such a Debt; if there be a consideration to ground the Action on, it is binding. As thus: the Husband was indebted to another man upon a Contract for Beer, and died Intestate; the wife took administration, and afterwards assumed upon herself to the Creditor, that if he would deliver her six Barrels of Beer, she would not only pay for them, but her Husband's Debt also; in this case it was adjudged that Judgement should be ●●●●ed de bonis propriis generally, for it is become a Charge by her own act; and by her promise as Administratrix, ●he hath made it her own Debt. Tr. 37 El. B. R. in Wheeler and Collier's case. Cro. 1 part. Rep.  
376. A Rent was granted to the Husband and Wife for their Lives; the Rent is behind, and the Husband dies, and then another Rent becomes in arrear, and the Wife dies Intestate; and the Administrator brought an account of debt for both Rents in arrear, as well in the Husband's life-time, as in the Wives, and adjudged the Action did well lie. Mich. 42, 43 El. B. R. Temple and Temples case. Cro. 1 part Rep. fol.  
377. If Administration of the debtor's goods be committed to the Creditor, it doth not extinguish the debt; but if the Creditor make the debtor his Executor, it is a Release in Law of the debt: but if a Woman-executrix take the debtor to Husband, this is no release of the debt; for if he die, she may sue his Executors; for the debt was but suspended during the Coverture. M. ●1 El. B. R. Crosman and Reads case. leonard's Rep. fol. 320. Co. 8 li. fol. 135. in Sir Jo. needham's case, and Mich. 1652. B. R. Rot 686. Ashby and child's case. Styles Rep. fol. 384.  
378. Where an Infant is made Executor, and Administration is committed durante minori aetate, and the Administrator hath goods in his hands to a great value, and the Infant at his full age releases to the Administrator all demands; this release shall be charged as asse●s in the Infant's ●ands, for so much as he released ●o the Administrator. Mich. 15 El. ●wens Rep. fol. 3. and M. 37 El. C. B. ●ittleyes case. ●odbolts Rep. fol. 29. ●nd 30.  
379. An Administrator may bring an Action of Trespass or Trover and Conversion, for goods taken away before he obtained the Administration; for the Letters of Administration shall relate to the time of the Intestates death, and not to the time of granting them. M. 1652. B. R. ●●●ge and Hebbs case. Styles Rep. fol. 〈◊〉 M. 3 Car. 1. B. R. Hudson and Hudsons' case. Latches Rep. 214. 36 H. 〈◊〉 7. Fynches' Law, li. 1. ●. 5.  
380. An Administrator may retain Money in his own hands to satisfy his own Debt, in prejudice of other like Creditors of the Intestates, aswel as an Executor may do. M. 11 Jac. Bond and Green's case. Godbolts Rep. fol. 216. Tr. 13 Jac. Rot. 1906. C. B. Waynford and Wayners ca brownlow's Rep. 1 part pag. 80.  
381. An Administration may be granted upon Condition; and if the Condition be not performed, it may be revoked or repealed: but then i● the Administrator before the Condition broken give away the goods, or sel● them, such acts are good. Co. 6 lib. fol. 19  
382. Note, If the Testators words be indifferent to make an Executor, or universal Legatary; a Testament, or a Codicil; in such case it is usual to commit the Administration to the Widow or next of Kin, deeming the party to have died intestate. Franc. Manticade conject. ult. volunt. lib. 2. Tit. 3. num. 12. Swim. part 4. sect. 4. num. 8.  
383. Note, That the Ordinary may call the Administrator to account, but he cannot force him to make disposition of the surplusage of the Intestates goods after Debts paid, by the true meaning of the 21 H. 8. C. 5. but what remains shall go to the Administrator, in case there be any more Debts to pay, which as yet are not come to his knowledge: and if the Ordinary will meddle to cause a disposition to be made, a Prohibition will be granted against him, if the Administrator request it. M. 6 Car. 1. B. R. Levans case. Cro. 3 part. Rep. fol. M. 15 Jac. C. B. Tooker and Loans Ca Hobbarts Rep. fol. 190▪ Pasc. 24 Car. 1. B. R. Hill and Birds case. Styles Rep. fol. Brownlowes 1 part Rep. pa. 32. And Vide Slawneys case. Hob. barts Rep. fol. 83.  
384. An Administrator accounted before the Ordinary, and proved payment by one Witness: and because the Ordinary would not allow of proof by one Witness, but did excommunicate the party for want of proof; a Prohibition was thereupon granted, and the Book says there, that the jurisdiction of the Spiritual Court is not taken away by the Prohibition, but their proceed only, P. 2 Car. B. R. Bellamy and Aldens ca Latches Rep. fol. 117.  
385. Now as touching the Interest of the Ordinary in the goods of the Intestate that comes to his hands, note that it is only such an interest as an Administrator durante minori aetate Executoris hath, and therefore he cannot give nor sell the Goods of the Intestate, or do any thing to his prejudice. M. 9 El. Dyer, fol. 256. Co. 2 part Inst. fol. 398.  
386. And so if the Ordinary make a Letter to one Ad colligendum bona Defuncti, & ad vendendum ea quae peritura essent, & inde Compatum reddere: In this case if the Grantee sell the Goods, he may be charged as Executor of his own wrong; for the Ordinary himself having not power to sell, cannot give more power than he hath. Swim. part 4. sect. 16. in fine. M. 9 El. Dyer, fol. 256.  
387. If no goods come to the hands of the Ordinary, he is not chargeable by the Law; but if any come to his hands and possession, and he will neither Administer and pay the Debts and Duties himself, nor commit Administration to the Friends and Kin of the Intestate that would, than he is chargeable by the Law, for so much as comes to his hands, and is liable to the same Actions as other Administrators are: But the Ordinary cannot have an Action of Debt, Covenant, nor any other Action which belonged to the Intestate; but he to whom he commits Administration may: so that he is subject to the charge and trouble of an Administrator, but is excluded from the privileges belonging to an Administrator. 7 H. 4. fol. 18. F. N. B. 92. a. Co. 2 part Inst. fol. 398. West. 2. C. 19 Fynches' Law, pag. 174.  
388. If an Action of Debt be brought against the Ordinary for a Debt of the Intestates, after notice given him of the same, he may not Administer to others, if he have not sufficient to satisfy that debt. M. 7 El. Dyer, fol. 233.  
389. If the Ordinary take goods of the Intestates into his hands, and after commits Administration, and notwithstanding still retains the goods; in this case he shall be charged still, as if he had not at all committed any Administration. 11 R. 2. Admin. 21. Co. 2 part Inst. fol. 398.  
390. Where the Ordinary doth take goods of the Intestates, being out of his Diocese; here he shall not be charged as Ordinary, but as Executor in his own wrong. 12 R. 2. Admin. 21. Co. 2 part Inst. fol. 398.  
391 If the goods of the Intestates come to the hands of the Ordinary, and he dyeth, his Executors or Administrators shall be charged in an Action of Debt, by the Stat. Westmin. 2. C. 19 Westmin. 2. c. 19 Co. 2 part Inst. fol. 398. Regist. fol. 141. 11 E. 3. Exec. 177.  
392. Having spoken before concerning a Codicil, I thought good here to insert the usual form thereof, as followeth, viz.  
393. Be it known unto all men by these presents, That whereas I Henry Walker of R. etc. have made and declared my last Will and Testament in writing, bearing date, etc. I the ●aid Henry Walker by this present Codicil do confirm and ratify my said last Will and Testament, and do give and bequeath unto Roger Myton of Lympton my best Suit of Clothes: and my Will and meaning is, that this Codicil or Schedule be, and be adjudged to be part and parcel of my said last Will and Testament; and that all things herein contained and mentioned be faithfully and truly performed, and as fully and amply in every respect, as if the same were so declared, and set down in my said last Will and Testament. In Witness whereof, I the said Henry Walker have hereunto set my Hand and Seal this 25th day of July, in the 19th year of the Reign of our most gracious Sovereign Lord King Charles the Second, and in the year of our Lord God 1667.   
FINIS.   

The Table.  

A  
ADministration how and to whom it must be granted. Sect. 354, 355, 356, 357, 358, 359, 360, 370, 371, 382.  
What Actions ●ye for, or against an Administrator. Sect. 374, 375, 376, 379.  
Administration during Minority of an Executor, when it shall cease. Sect. 274, 276, 277.  
The Power and Authority of such an Administrator. Sect. 275.  
What shall be Assets in the hands of an Executor or Administrator, and what not. Sect. 252, 281, 282, 284, 285, 296, 297, 298, 299, 300, 378, 380.  
How and before whom the Executor or Administrator is to pass his Account. Sect. 345, 346, 347, 383, 384.  
Appeals when, how, and before whom to be made. Sect. 361, 362, 363, 364, 365, 366, 367, 368, 369.   

B.  
BOna Notabilia what they are, and what to be done in such case. Sect. 341, 342, 344.  
Bona Peraphernalia, what is meant thereby. Sect. 315, 316.   

C.  
COdicil what it is. Sect. 22, 23, 24, 25, 50.  
The form thereof, Sect. 393.  
Conditions, how many sorts thereof. Sect. 117.  
When they must be performed by an Executor or Legatary, and when not. Sect. 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143.   

D.  
WHat things are deviseable by Will, and what not. Sect. 162, 163, 164, 165, 166, 167, 168, 169, 170, 172, 173, 174, 175, 176, 177, 318.  
What passes by a Devise of Omnia bona. Sect. 191, 192.  
What passes by a Devise of Omnia Cattalla. Sect. 193, 194, 195.  
What passes by a Devise of movable Goods. Sect. 197.  
What passes by a Devise of  Goods. Sect. 198.  
What passes by a Devise of all Householdstuff. Sect 199, 200.  
What passes by a Devise of all Lands and Tenements. Sect. 225, 226, 230.  
What words in a Devise of Lands make a Fee simple, what a Fee-tail, what an Estate for life, etc. Sect. 227, 228, 229, 231, 232, 233, 234, 235, 236, 237, 238, 239.   

E  
HOw many kinds of Executors. Sect. 243, 244, 245.  
What time the Executor is to have to accept or refuse the Office. Sect. 311.  
In what things the Office of an Executor doth consist. Sect. 248, 312, 321.  
When an Executor shall be compelled to stand to the Office, and when not. Sect. 249, 250, 256, 257, 305, 306.  
Where divers are Executors, when the Action must ●e in all their names, and when not. Sect. 253, 255, 260.  
Who may be an Executor, and who not. Sect. 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106.  
The several ways of appointing an Executor. Sect. 112, 113, 114, 115, 116.  
An Executor conditionally appointed, when he must perform it before he can be admitted to the Office, and when not. Sect. 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143.  
What Actions lie for Executors, and what against them. Sect. 271, 272, 273, 286, 293, 301.  
What Acts of an Infant-Executor do bind him, and what not. Sect. 278.  
When Executors may refuse the Office, and afterwards accept of it, and when not. Sect. 254, 256, 257, 258, 259.  
What Acts shall make a man Excutor in his own wrong. Sect. 308, 310.  
Executor in his own wrong, how far he is chargeable. Sect. 307.  
After what order Executors are to pay debts. Sect. 292, 294, 29●.  
When Execution shall be of the Executors own Goods, and when not. Sect. 302, 303, 304.  
When a Debt shall be extinguished, and when not. Sect. 286, 287, 288, 377.   

F.  
WHat Fees are legally due for Probat of Testaments, and granting Administrations. Sect. 332, 333, 334, 335, 336, 337, 338.   

I.  
WIthin what time the Inventary of the deceaseds goods, is to be exhibited. Sect. 313.  
The form and manner of making an Inventary, Sect. 314.  
What goods are put into the Inventary, and what not. Sect. 315, 317.  
The benefit of an Inventary. Sect. 319.   

L.  
AFter how many several ways a Legacy may be given. Sect. 182, 183, 184, 185.  
Where a Legacy must be sued for, Sect. 187, 188, 189, 241.  
A Legacy conditionally given, in what cases the Legatary must perform the Condition before he can obtain the Legacy, and in what Cases he need not. Sect. 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143.  
When the Legatary may enter and take his Legacy without leave of the Executor, and when not. Sect. 186, 196.  
How and after what manner Legacies are to be paid; when the Legatary shall recover the whole, and when but a part of the Legacy. Sect. 201, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219.  
When the Legatary shall have the Election or choice of the Legacy, and when the Executor shall have it. Sect. 220, 221, 222.  
In what Cases a Legatary forfeits his Legacy, and what not. Sect. 223, 224.  
Lands left to be sold by the Executors, in what cases they must join in the sale, and in what cases they need not. Sect. 261, 262, 263, 264, 265, 266, 267, 268, 269, 270.   

M.  
MOrtuaries where du●, and what to be paid for the same. Sect. 348, 349, 350, 351, 352.   

O.  
ORdinary, who, and what he is. Sect. 353.  
What Interest he hath in the Intestates goods that come to his hands. Sect. 385, 386.  
What Actions lie for, or against the Ordinary. Sect. 387, 388, 389, 390.   

P.  
THe custom of the Province of York, concerning children's Portions. Sect. 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 178, 179, 180, 181.  
What is meant by the word Portion. Sect. 161.  
Probat of Testaments before whom they must be. Sect. 321, 322, 323, 324, 342.  
How many ways Testaments may be proved. Sect. 325, 326, 327, 328, 339.   

T.  
TEstament, the derivation thereof. Sect. 1.  
It's difference from a last Will. Sect. 2, 110, 111.  
The several kinds and forms of Testaments. Sect. 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20.  
Who may make a Testament or Will, and who not. Sect. 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85.  
Who may be Tutor or Guardian, and who not. Sect. 144, 145.  
How and by whom a Tutor may be appointed. Sect. 146, 147, 148, 150.  
Their Office. Sect. 149.   

W.  
WHat shall be a good Will, and what not. Sect. 31, 32, 33, 34, 35, 36, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 51, 53, 54, 55, 56.  
What shall be a good Will to pass Lands and Tenements. Sect. 6, 37, 38, 52.  
The difference between a Testament and a William. Sect. 2.  
The definition of a last Will. Sect. 21.  
What number of Witnesses required for proof of a last Will or Testament. Sect. 26, 29.  
What Witnesses may be excepted against in such a case, and what not. Sect. 27, 28, 30.   
FINIS.