AN APPENDIX TO THE OFFICE and DUTY OF AN EXECUTOR. A Testament differs from a last Will in the naming an Executor, Testament; and it is thus defined. Testamentum est voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri voluit. If one demand of B who shall be his Executor, and he name D; or if B say, I mean to make D my Executor, yet D is not Executor, unless it be probable that B had at that time animum testandi. A is compelled by fear or menace, or urged by Violence to make his Will, this is void, yet a modest request to one to make his Will, is allowable. If any person refer his Will to another to declare and name an Executor for him, and he do it, this is void. A Codicil, Codicil. is like a Boat tied to a great Ship: there is no Executor named therein, it may be written or nuncupative; made before or after the Testament, or by one dying intestate, and perhaps long before his death, and yet it may be good; for being made before a Testament, it will be good, unless it be revoked by a Testament, or be contrary to it. If two Testaments be found, and no knowledge which was made first, and they differ both in matter and circumstance; both shall be void; not so of a Codicil unless the one impugn the other. Things given and delivered by a Testator in his life time, Legacy. are no Legacies. A named B his Executor, who cannot or will not intermeddle; Administration must be granted by Statute cum testamento annexo, which makes the Legacies thereby given due both by Law and the custom of England. But the civil Law holds the contrary to this. A bequeathes Corn growing or Goods unto one: A Stranger will not suffer the Executor to perform the Will, he shall sue him in the Spiritual Court. Contra if a Stranger take the Testator's Goods from the Executor, there he may have an Action of Trespass at the Common Law. A Testament dated at Cane in Normandy, and proved afterwards in England is good. Legacies are to be recovered in Court Christian, so if a Termor devise his Crop or Goods: But of Franktenement or Inheritance, the Legatee may enter without further Assignment. A bequeathes Goods to repair the Fabric of a Church, if they be detained they must be recovered in the Ecclesiastical Court, so must a Wardship and Chattels real when bequeathed, be recovered. A charges his Executor to pay his Debts, the Creditor in respect of this charge may sue in the Ecclesiastical Court. So if an Executor be charged to build a Grammar School, and he neglect it. Among the Ancient Romans there was a Will, Solemn Testament. called a Solemn Testament, which was proved by seven Witnesses, and all their Seals affixed to it, or else it was deemed void; but now two sufficient and credible Witnesses suffice. In a Devise of Lands it must be in the life time of the Testator and in writing. But of Land devisable before the Statute the Testament is good if it be probable. One dying intestate, the Widow or next of Kin shall have Administration: See the Stat. 21 H. 8.5. but see also 31 E. 3.11. but these are both altered by the late Statute made in his now majesty's Reign. Testaments written by others being read and allowed before the Testator are good, or if a Notary take brief Notes and write them in form at large, and the Testator die before he hear it read, yet it is good to pass Lands and Tenements. Lands will not pass by a Nuncupative Will by the Stat. 32 H. 8. yet in Burgages tenure it may be the contrary. A Testator writeth his Will with his own hand, or causeth it to be written in his presence, and after shows it to witnesses, and then sealing it up, says, This is my last Will; this will be a good Testament; but it is necessary such witnesses writ their names on the backside. A Testator says such a one naming B, hath his Will in keeping, and after dies, B produceth a Will and is sworn to it, yet he must prove it at lest communi formâ, or if put to it per testes, who can prove the hand and other circumstances. Testaments Privileged. Besides them there are Military or Privileged Testaments, and those of three sorts. 1. Among Soldiers, they may have two and both good according to meaning, these Soldiers were anciently divided into three Kind's: 1. Milites armati, 2. Milites Literarii, 3. Milites coelestes, that the Milites armati, the active Soldiers had this privilege is not to be doubted: but the 2. Milites literarii who were Doctors of the Law, and the 3. Milites coelestes, who were Divines were but metaphorical Soldiers, and it hath been a continued doubt whether they ought to have this Privilege. The second sort of Privileged Testaments is called Testamentum in Liberos, and in such case where two Testaments are found, and the first is to the use of Children, this will not easily be avoided by a latter Will giving Goods to strangers, unless in the latter there be a special revocation, or else it be made in pios usus, or upon some great disagreement, that had of late happened between the Father and Children. But if two be found of one date, and the one favours Children, and the other hath a contrary face or design, that that favours the Children, shall have the more favourable allowance, because it carries the Estate to the blood, which the Law is very tender of. The third sort of Privileged Wills is Ad Pias causas, whereby a Legacy being given to young Orphans, Widows, lame, diseased, poor, needy and miserable persons, or to Hospitals, Churches, repairing Bridges, City-walls, etc. These privileged Testaments may be written with any Characters, Figures, Language, etc. A Testament ad pios usus found canceled, unless there be a positive proof of cancelling the same, shall be presumed to be done unadvisedly, and so consequently good. Two Testaments are found: 1. Inter Liberos, 2. Ad pios usus, both of one date, of these the first shall be judged good, because the Children have a first right, & jure successionis shall be admitted. CHAP. II. What Persons may make a Testament. NOne under twenty one years of Age may devise Lands, Children. Tenements, or other Hereditaments: But of Goods a Boy at fourteen, and a Girl at twelve may dispose, but not before, though ad pios usus: nay in truth it is voidable being so made in Minority, unless (if when they come to full Age) it be confirmed, for than it will be good. Mad and Lunatic Mad and Lunatic persons cannot dispose of any thing during their Madness and Lunacy, though ad pios usus: but if they have lucida intervalla, it is held otherwise. A being compos mentis, makes his Will, after he becomes non compos, and during that incapacity would disannul it, this will not avoid it, for the first Will stands good. And here note, that every man and Woman is supposed to be of sound and perfect mind and memory unless positive proof be made to the contrary. Words only are not a sufficient proof of sanity of mind or to set forth the reasonable faculty. For a Parrot may be taught significant words, yet none will a●●r them to proceed from an instinct of reason, no more than they can assert Balaams' Ass a reasonable creature, because by miracle its mouth was opened to reason with its Master. An old Man, who is so superannuated that he has forgot his own name, Old Men. is held unfit to make a Will. So a Man in extremis. The old Law of Slaves and Villains, was this; Villains. their Lands, Goods and Children gotten by themselves, or given them by others, were all in bondage. For whatever such a bondslave getteth, it is his Lords; for if a Villain make a Will of his Lands, or Tenements, or Goods, and the Lord enter before the Will proved; the Will shall be void, and the Lord shall have them. But this Law is (though not abrogated) yet so long disused, that it is of no force. If a Man be condemned to perpetual Prisoners. imprisonment upon a criminal account he cannot make a Will; But a Prisoner for Debt may, so it be not to defraud his Creditors. A Woman Covert cannot devise Lands, Tenements, Feme Covert. or Hereditaments, neither to her Husband or any other; 1. Not to her Husband for these reasons. 1. For that may be in prejudice of the Heir. 2. Albeit she did of fee will, and without constraint, for the tye is not apparently taken off. 3. Although the Will were made before Marriage, for the Testator must be in as good power at the time of death as of the making the Will; 4. If the Wife make a Will during Coverture, and then survive her Husband, this is supposed void, unless she confirm it after the Husband's death; But if such Will were made before Marriage by her, and she survive, that will be good, She may dot devise Goods and Chattels without consent of her Husband, but by his licence peradventure she may. In some few cases a Feme Covert may make a Will without her Husband's licence, as first an Empress or Queen, so it be not in prejudice of her Husband or his Regality. 2. When any thing is due to the Wife whereof she was never possessed during the coverture; neither may the Husband bequeath a chose in action, as an Obligation, etc. which he hath only in the right of his Wife, if he be not joined with her, or the property altered after Marriage. 3. A Woman betrothed to a Man, may before espousals make a Will. 4. If a Wife be Executrix to another, she may dispose of those goods, else might the next of Kin have administration de bonis non administratis of her Testator, for where an Executor dies intestate, the Testator from that time is deemed to die intestate. A Wife may appoint her Husband her Executor, but such Wife is restrained from making such a Will two ways, 1. Unless she appoint an Executor, her Will will be void. 2. If such Wife have any Goods as Legatary from the Testator, and which she receiveth as Legatary, not as Executor, they are her Husbands, and so not by her devisable: also increase of goods during the coverture which the Wife has as Executrix, as Calves, Lambs, and the like, the same redound to the Husband and not to her. A Wife or other Executor and Legatary is deemed to accept Goods as Legatary, not as Executor, unless by Protestation or some other means, the contrary appear, for it is her better Title and more free; yet this is according to the rule of the civil Law, but not agreeable to the Law of the Land. If a Husband be bound, or do voluntarily licence the Wife to make her Will before Marriage, and she make two or three, the last is that must stand. A deaf and dumb person, not knowing what a Testament is, Deaf and Dumb. cannot make a Testament, but if he were not deaf, a partu & naturaliter, but he became afterwards deaf and dumb by accident, or otherwise, he may do it by signs, but it will be better if he can write. He that can speak could once hear, Ergo, he may make a will. Dumb and not deaf, may make a will by signs, so as the same be well known to witnesses. A blind Man, Blind. may make a Nuncupative Will, or a Testament in writing, if it be read to him, and he declare he heard and understood it. A person convicted of High Treason, Traitor. cannot make a Will, for that he hath forfeited all his Estate both real and personal whatsoever. But if he obtain a Pardon, Quaere, what he may do. Felons forfeit their lives, Felons. Goods and Chattels, and the profit of their Lands for a Year, Day and Waste: and after the King hath had annum, diem & vastum, the chief Lord of the Fee shall have it, except in the County of Gloucester, where the next Heir after the Year and Day shall inherit; and in Gavel-kind Lands where they descend equally to Sons, and for default of Sons to Daughters in like manner: And there it is said, The Father to the Bough, The Son to the Plough. So that Felons cannot make Testaments of what the Law hath made a prior disposition. But if a Man be indicted of Felony, and die before conviction, he may devise his Goods and Lands, or if upon his arraignment he stand mute, his Goods shall be confiscate, but he may devise his Lands. For a Felon attainted at the time of the Fact committed, in such case it is to be regarded in respect of his Lands: But for his Goods, the time of Judgement must be respected; for before Judgement he may give his Goods, for neither the Sheriff nor other person can seize before conviction. A Heretic doth not forfeit his Lands unless he be executed, Heretic. nor Goods unless he be convicted and delivered over to laymen's hands, yet if he be but excommunicate, he cannot make a Will. Apostatas are of three sorts. Apostate. 1. Such who having once been Christians renegue their profession, and become Jews or Turks; and such an Apostate was Julian the Emperor, who from thence had the infamous Surname of, The Apostate: 2. Such as being subject, refuse to obey the command of the Ordinary or Superior, as our now Sectaries and Nonconformists. 3. Such as have entered into Holy Orders, and afterwards throw it off, and become lay in habit or profession, and these are all reputed as bad, if not worse than Heretics. A Sodomite, qui peccatum inter masculos & contra naturam cum faemina, Sodomite, is barred to make a Will, although he be not convicted. An Outlawed person is out of the protection of the Law, Outlaw. and all his Goods and Chattels are forfeited, be the cause of Action just or unjust, Doct. and Stud. Lib. 1. Cap. 6. in fine, if one be outlawed for Felony he shall forfeit Goods and Lands, but in Action personal the contrary, if any Error or discontinuance be in the suit or Process whereby the Outlawry becomes reversable, as where the party is beyond the Seas; where three proclamations are not made, whereof one in open Court, another at Quarter-Sessions, and a third at the Church or Chappel-door where the Defendant dwelleth; or lastly, where the party hath obtained his pardon. One at the very point of death, In extremes. if he be of good memory, though you can scarce understand what he speaks, yet may make his Will, and it shall be good. A written Will is brought to a sick Man, and he is asked if that be his Will, and he answers yea; this Will if it were written by the sick Man's privity, or directions it will be good; otherwise it is held contrary. Ecclesiastical persons are either Regular or Secular; Relligions. The Regular are Monks, Friars, etc. And if such a Regular Clerk make his will at his entrance into Religion, it must be then also proved, and the Executor must enter as if he were actually dead; for he is accounted dead in Law in respect of his Vow, and therefore totally disabled to make a will afterwards. The Secular are Bishops, Vicars, etc. and these may make a will, so as the Goods they dispose thereby be not held by them in right of their Church: for they may not devise the Fruit of Trees growing on the glebe. Howbeit Corn growing upon the glebe belongs to him, his Executor or Administrator, but of other Fruits, Tithes, Oblations and Emoluments, the next Incumbent shall have them towards payment of his first-fruits: and if he die his Executor, 28 H. 8.11. CHAP. III. What things may pass by Will, and how much. 1. Of Lands. 2. Of Goods, and Chattels: And of the tuition of Children, to whom; and how it shall be granted or committed. Land's are devisable, either by Custom or by Statute. By Custom, such are Gavel-kind Lands, (which are not contined only to Kent, as hath been erroneously held from the Grant of William the Conqueror) And one seized thereof may give or sell them at his own pleasure: neither are they forfeitable for Felony, according to the Adage, The Father to the Bough, The Son to the Plough. 2. Lands held in Burgage-tenure by Custom devisable in divers Cities and Burroughs. And such Land may be given in Fee-simple, Fee-tail, for Life, or Years, so as the Will be enroled before the Mayor, neither is it needful to have it written according to the form of the Statute of Hen. 8. for that the Land was devisable before that Statute, and is a kind of a Socage-tenure. Citizens, Burgesses and Free. men may devise their Lands in Mortmain, which others who have Burgages Lands may not do, otherwise there is no difference. But joint-tenant of Burgage-Lands cannot devise his part, for it will pass by survivourship. The Custom of devising Lands to Feoffees reform by 27 H. 8. which see at large. As also the Stat. 32 H. 8. whereby Lands may be devised. A. having Lands in Socage may devise all except he have Lands of the King or others in Knight-service, but in such device there must be reserved primer seisin, and fines for alienations, such as should have been, in case the Land had been altered or sold. If one hold Lands in Socage, and other Lands in Knight-service, he may devise all his Socage Lands, and two parts of those in Knight-service, reserving three parts for the King or other Lords of the Knight-service Lands for Wardship and primer seisin, etc. but this is in effect now out of doors. If there be two joint-tenants or more of Land holden of the King, and one die, his Heir shall be in Wardship. Lands, Tenements, Rents and other Hereditaments in possession, reversion or remainder may be devised as before. Of Goods and Chattels all may be devised, yea as well things extant as things not in being at the time of the device, or during the Testator 's Life, as Corn annually growing in such Land; all Lambs coming of such a flock, depasturing in such a Field next Year; but if no such Corn or Lambs be; it is void. By common Law; If A. grant B. an annuity of 10 l. to be taken out of his Coffers, and he have no Coffer, or out of his Lands in Dale, and he have none there: in both these cases his person is chargeable. By a deed of Gift made of all Goods, and Chattels, yet debts or things in action pass not: Contrary it is of a devise by a Will; for if a debt, or thing in action be given to A. the Testator may make him Executor only to that, and A. may recover it in his own name. If a man bequeath another man's Goods, by the Civil Law, the Heir must either buy them, or render so much in value to the Legatary. But both by the Common Law, and Law Ecclesiastical used in this Realm, such a devise is judged void. There are several sorts of Goods which are said not to be devisable, as 1. Such as a man hath in the right of his wife, viz. Debts due to her, or things in action, or Chattels real, as Leases, for after the Husband's death, they return to the wife. 2. One may not devise Goods which he has jointly with another, no though he make the other joint Executor, yet he shall not be chargeable for those Goods, but adjudged to have them as survivor. 3. Neither may one bequeath those things which he hath, as Administrator to another, for he ought not to convert those to his own use, but therewith to pay the Debts and Legacies of the Deceased, and to distribute the rest in pios usus, and therefore bound to be accountable. 4. Albeit, the Executor of an Executor may administer Goods of the first Testator, yet so may not the Executor of an Administrator, but there must be a particular Administration of them granted: Also an Executor may appoint an Executor of the first Testator 's Goods, so may not an Administrator. Howbeit, an Executor cannot give away the Goods of a Testator, no more than may an Administrator, for they are not properly his, but he must account for them. 5. Goods of the Realm, such are the Crown and the Jewels thereof, are not devisable. 6. The Master of a College, the Mayor of a City or Burrow may not devise things which belong to the Burrow, City, or College; so it is also of an Hospital and Church goods; (excepting upon the glebe growing.) 7. Goods de jure, belonging to the Heir are not devisable, as Trees growing, the Heir-loom, etc. Tenant in right of his Wife, sows Lands, and bequeathes the Corn, the Legatary shall have it, and not the wife, otherwise it is of Corn and Grass not separated. Tenant in tail makes Lease for Life to A. and dies, the issue in tail recover Land against A. being second in formedon, this is lost. A. hath a Daughter and dies, his Wife great with child of a Son; the Daughter enters and sows the Land, she shall reap, though the Son be born before reaping time; But if after the sowing of Corn and before the Son born, the Mother recover Dower against the Daughter, and ground sown be assigned to her in Dower, she shall also have the Corn. Windows, Tables, wainscot, Benches, and the like, Windows, etc. fixed or mortised in earth go not to the Executor, but to the Heir, for they are parcel of the freehold and to remove them is waste; Also Furnaces and Ovens, set in Mortar or Stone do belong to the Heir. Concerning the assigning of Tutors or Guardians, Guardian. and the disposing of children's portions during minority. Divers Customs are in England observed. A Father hath a paternal power and may appoint a Tutor or Guardian to his Child for a time, and the custody of his portion. All but the Heir and such as are preferred in the life time of the Parents are to have filial portions of the Father 's goods: But if there be no Testamentary, Tutor or Guardian, than the Ordinary may appoint the next of Kin, demanding the same, as in case of administration, but if the Child be a Ward, the Ordinary may not do it. Neither can any one be a Tutor or Guardian, who may not be an Executor. A Tutor or Guardian may be assigned to a Boy till 14. to a Female Child till 12. and then they may have Curators of their own choosing. If a Child be a Ward, the Guardian shall have him, and all his Lands, and offering him a convenient marriage and at reasonable age, if they refuse, he shall have the value of their Marriage, which shall be rated according to the value of the Land: but this is now taken away. But in Socage Tenure, if the Land come by the Mother, the Uncle on the Father 's side, shall have the Guardianship, & sic è contra, and as such shall account to the Pupil for the profits of his Land at his full age. Of Fools and Idiot 's, the King by his Prerogative Royal, hath the tuition of the body, and the profits of the Lands; but after the Idiots death, the Land shall return to the next Heir. Copyholder Heir under 14 years of Age, shall have a Guardian appointed him till 14. as the Mother, or next of Kin. A Tutor may be appointed for a time, either simply, or upon condition, nay more than one may be appointed. If the Testator say, I commit my Children to the tuition of A. or I leave them to his hands, or to his government; or I desire my Wife to take care of my Children, all these imply the Testators meaning to be so, and they shall be confirmed Tutors. The Office of a Tutor is to provide for the Infant, faithfully to administer his Goods and Chattels, and to account for all received by him: and if any take away the Pupil or his Goods, he may cite them, and make them restore them in the Ecclesiastical Court. The Tutor may sell bona peritura, but not Goods immovable. If a Testator Will that A. shall educate his Children, and have the disposing, setting and letting, of his Lands, yet he may not sell them, for the words, dispose, set, and let, properly bear no such meaning. As to the disposing of Goods, we are to observe, Distribution that moderate Funeral expenses are to be paid out of the whole, and then debts, quaque suo ordine, but if the Executor pay Legacies, and there be not sufficient left to pay Debts, he shall pay de bonis propriis, it being a waist in him. Cro. Eliz. 646. the 5 Report Duke and Littleton's Case. Cheynyos Case. 33 Eliz. B. R. If there be a Wife and no Child, or a Child or Children, and no Wife, the Goods shall be divided into two parts, and the Testator can but devise one half, but now see the Stat. 22 Car. 2. Cap. 11. And if there be Wife and Children or Child, which Child is Heir, or which Children were advanced by his Father, in his life time, in such case, the Wife shall have half, and the Testator may dispose of the other moiety. But see Ratcliffs Case. 3. Rep. But it is also held that a Child preferred shall have as in Hodgepodge if he will cast in his share. See Fitzh. and Brook. de rationabili parte bonorum. Although the Law leaveth all to be disposed of by the Testator, yet in many places he is restrained by Custom. But note, it seemeth he may disseise of Leases, especially where it is customable for the Wife and Children to have a ratable part of movable Goods and Debts. Bro. Tit. Exec. Patrimonium patris munus, because it is to prefer. Matrimonium matris manus, because she is to nourish and breed up the Child. If A. be seized of 30 Acres, and have issue 2 daughters, and he bestow 10 Acres in Frankmarriage with one of them, and die seized of 20; the married Sister may cast up in Hodgepodge, and have a new division and moiety. CHAP. iv Exposition of Testaments. TEstaments shall be favourably expounded, and according to the intent and meaning of the Testator (which intent ought to be manifest and not doubtful. Co. 6. Wild's Case) because he is supposed to be inops consilii. Words in a Testament seeming to tend to a condition, as (if, Provided, and such like) shall not be taken in Law for conditions, where the intent of the Testator, appeareth not to defeat the whole Estate devised thereby, but for a limitation; as for example. A. seized of Lands in Fee, hath issue B, which Lands he deviseth to C. in tail, the remainder to D. in tail, with divers other remainders, Provided, that if any of the In-taylees, bargain, or sell the Land, or any part thereof, that from thenceforth, such persons selling, shall be utterly excluded, and the Land to remain to the next in tail, as if such person had not been named in the Testament; in this case the exposition shall be, until such Person in the Intayl shall alien, he shall have as before: and so it is a limitation, and not a condition. For if it were taken for a condition, then B. his Son should enter, for he only is prius (and none but priuses may enter for a condition broken) and then all the Estates were determined, which were contrary to the intent of the Testator. But by limitation it is otherwise. Blow. so. 412. Scholastica's Case. Only such Estate as cannot be by the rules of the Common Law conveyed by an Act executed in the life of the Testator, with advice of Counsel, such Estate cannot be devised by Testament. As if A. devise Land to B. in Fee, and if B. do not such an Act, that C. shall have the same to him, and his Heirs, this is void: for such limitation if it had been by Act executed, had been void. Et sic de caeteris Co. Rep. Corbet's Case fo. 86. CHAP. V Of the Forms of Testaments. THe substantial or essential form of a Testament is the naming of an Executor, without which it is no Testament: for the Executor is in the place of the Testator, and compellable to pay Debts so long as he hath Assets; without naming an Executor it is but a Codicil, be there never so many Gifts or Legacies contained therein, and Administration is to be granted, as of one dying intestate, unto the Wife or next of Kin. But be it solemn, or unsolemn, written or nuncupative, privileged or unprivileged, the naming or appointing of an Executor without more ado, makes a good Testament. An Executor may be appointed simply or conditionally, from a time or to a time certain, generally or particularly in the first, second, third or fourth degree. Simple nomination, as, I make, Institute or Will that, or desire that A. be my Executor, or A. shall, or let A. be my Executor, or I commit all my Goods to dispose of by A. or I will that A. dispose of those Goods in his possession; in the first he shall be adjudged Executor of all; In the second of so much as are in his possession only. The word Executor needs not always to be expressed in a Will, but circumlocutory words will serve, so as the Testator 's meaning be certainly known, but when it is doubtful whether the person named be a general Legatary or Executor, great care must be taken to determine, whether a Will or not a Will. A Testator makes his Will by entreaty or interrogation of another person, as if one demand if he will make A. Executor, and he answer yea, or I do, this is a good nomination, so as he be then purposed and intended to make his Will; for be the words never so plain, if the Testator were in fear, jest or drink, though he say I make A. my Executor, yet it is void, because he had not then animum testandi. As nomination of an Executor is pure and simple, being without condition, so of Legataries, mutatis mutandis, in all things always according to the Testator 's meaning: Therefore if A. devise to B. all his Lands and Tenements, all in possession and reversion pass by the word Tenements. Land is devised to A. to have for evermore, or to him and his Assigns, there the devisee hath a Fee-simple; but in a Feoffment, such words create but an Estate for the Feoffee 's life. A devise of Lands is made to A. thus, to give or sell, or do with at his pleasure, this makes a Fee-simple. A devise of Land is made to A. and his Heirs males, this is an Estate tail, but in a Feoffment the same words make only a Fee-simple, because thereby it does not appear of what bodies the Heirs shall be begotten. Lands are given by deed to A. and the Heirs males of his body, he hath issue a Daughter, who hath issue a Son, and dies, the Son of the Daughter shall not have it, but it shall return to the Donor. But if the same were so given by a devise in a Will, he, viz. the Son of the Daughter should have it. A devise made to an Infant in the Mother's Womb is good, but contrary of a deed Feoffment, grant or gift, for they being made to such are void. A devise is to A. and his Heirs Females of Land, the Devisee hath a Daughter and Son, and dies, in this case the Daughter shall have the Land, and not the Son though he be Heir. A devise of Land is to A. charging him with payments, of near the value of the profits during his Life, though there be word of Heirs, or Assigns, or for ever, yet this is a Fee-simple; But a devise of Land to A. in Fee, and if he die without Heir, then to B. in Fee, this is a void remainder, because one Fee-simple cannot depend upon another. So Land was devised to the Prior and Covent of B. so as they paid to the Dean and Chapter of P. 10 l. per annum, and in default thereof, their Estate to cease, and the Land to remain to the Dean and Chapter, this is a void remainder, for it could not be limited after an Estate in Fee, and the Heir, not the Dean and Chapter shall take advantage of the condition. A Legatary may take his Legacy without delivery by the Executor; But there is no remedy to recover a Legacy by the Common Law, but only by citation before the ordinary: But a Legatary possessed of his Legacy, at the Testator 's death, may retain it, if there be sufficient to pay debts beside. Conditions some are, 1. Necessary. 2. Some impossible. 3. And some possible or indifferent. 1. Necessary in respect of Fact, as if the Sun rise. 2. Necessary in respect of Law, as a condition to make one Executor or give 100 l. 2. Impossible conditions, and these have four sorts of Impediments. 1. Of Nature, as to give one 100 l. if he touch the Sky with his hands, or drink up the Sea. 2. Contrary to Law deemed impossible, as if he murder a Man, or deflower a Maid, for id possumus, quod de jure possumus. 3. Hard to be performed, as a base Subject to marry the King 's Daughter. And 4, of contrariety and repugnancy. 3. Possible conditions or indifferent, of these, 1. Some are casual as to give 100 l. if the King of Spain die this year, 2. Others are Arbitrary, as if one go to Church. But here note, that conditions, unlawful, impossible and dishonest are absolutely void. Every condition must be precisely performed, for performance in part will not suffice, for the whole meaning of the Testator therein, must be performed. A condition that one go to Church on Easter-day, and he endeavours so to do, but he is hindered by great floods, or other lawful impediments, the condition is performed: But if in going to Church he commit an offence, and be stayed for it; this is not a performance of the condition, when the condition cannot be performed by the Testator 's default, this is no bar to the Legacy, as a Legacy is given on condition, that he bury the Testator 's body in St. Peter's Church in York, and he dies excommunicate. Executor or Legatary under some possible condition admittable, putting in caution to perform the condition, or make restitution. Condition is, that A. marry the Testator 's Daughter, he is ready and willing, but she refuses, this is doubtful, for he must persevere if he will have the benefit, for though it seem the condition be performed in Law, yet is it not performed in fact according to the Testator 's meaning: But it is contrary if the Testator remitteth to him a Debt upon such condition, and he offereth to marry her: or if he be possessed of the Executorship, or Legacy in the mean time before she repent, or if 100 l. in such a chest, or a white horse be given on such condition, upon the first refusal, the Executor or Legatary will have a right. Condition is, he or she marry according to the appointment, arbitrement or consent of A. the condition is unlawful, but the Legacy is good, though the marriage be without such consent. Condition is, that thou marry not a Widow, or this, or that particular Woman is good, and if thou perform it not, no Executorship or Legacy shall pass, because thou hast liberty besides. A Legacy is given upon condition, that thou marry the Testator 's Daughter, thou must not marry first another Woman, and afterwards her, for it is a condition affirmative, and intended to be meant of first marriage, and so the Legacy is void. But in negative conditions, as if thou do not marry the Testator 's Daughter, here if thou marry two or three, and her at the last, yet the Legacy is good, for here not the first Act alone, but all subsequent Acts are regarded. A Condition, in respect of place is good: As that one shall not marry at York; for he is at liberty to marry elsewhere. Land is given to a Man, and the Heirs of his body, on condition, he nor his sell by Feoffment, etc. Here, if he or his Heirs sell; the Donor or his Heirs may enter, for this is in favour of others, and herein the Common Law, and the Ecclesiastical agree. Prohibition in a Will, to sell a Cup, Ornament, Gift of a Prince, Prise got in War, etc. is good, unless the Goods will not amount to pay Debts: or if it be so far from him, that he cannot have profit or use of it, he may sell it, or if he be the last to whom it is limited. One by his Will giveth A. the residue of his Goods, and makes him Executor, on condition he do not sell the same; A. must enter into Bond not to sell, before he can be admitted Executor: which Note, As to time when conditions are to be performed, when no certainty thereof is expressed; it must be done as soon, as with conveniency it may after the Testator 's Death. A. makes B. Executor, on condition that he give 10 l. to the Poor, he may do it at any time in his life; but the Ordinary may appoint the time, and if he fail, may grant Administration. But a Legacy given on condition that he give 10 l. to the Poor, he must do it as soon as he is able after his Testator 's Death, or else he will lose his Legacy. There are also casual Conditions, as if a Ship come from Venice, thou must attend, and if it come in thy Life, good: but if thou die before, thy Executor cannot have it, though it return after thy death. Condition is, (if such a one die without issue, this is much to be taken notice of,) for a Bastard shall not be deemed issue, though the Parents intermarry after the birth, and such are issue natural, not lawful, nor may they inherit. But if A. have issue by B. his Wife, this is lawful, not natural; so if one marry a Woman, with child by another, albeit born the next day, yet the Husband must be Father; For whose is the Cow, his is the Calf. If a Wife cohabit with an Adulterer, yet if it be possible that the Husband may come to her, the Husband shall be presumed the Father, nay though the Wife own the Adulterer, and the Child be like him, for that might happen by the Mother's conceit, at Conception, so Jacob's rods, Ethiopian picture, etc. but if the Husband were not at the time of Conception, within the four Seas, or far distant, or imprisoned, it will be judged otherwise; Also if disabled by Nature or old Age. In no case, such Children shall inherit. If a child be born alive, and heard cry, the Father by the courtesy of England, shall have the Land for his Life, otherwise if it were an absolute abortion. Remedy for Creditors and Legataries, during the suspense of the Condition. For they are due presently; therefore it is provided by the Statute of 21 H. 8. and 32 E. 3. that Administration be granted to the Executor for so long time as the condition depends. If a Condition be delayed to be performed by an Executor, it being in his power, it is his fault, and he shall be excluded. An Action against an Administrator shall abate, if there be an Executor which will prove a Will, after the Administration granted. The Ordinary may appoint a time to every Executor at the petition of Creditors to prove the Will, and if he refuse, Administration may be granted unto such as have interest until the condition be extant; or he may grant a Letter ad tollendum bona defuncti, but upon such letter an Action will lie against the Ordinary, as it might have done against the Administrator, yea though such one sell bona peritura, he may be sued as Executor in his own wrong. Ten pound a year given to one by a Testator, till his Son attain 21 years of Age is good, till he should attain, though he die in the mean time. If the Executorship be only limited, and the time of Age not joined to the substance, as I give to A. 100 l. and I Will the same be paid when he comes to 21 years of Age, and he die in the mean time, yet the Executor or Administrator shall recover it. And Executor may be particular as of his Goods, etc. in Yorkshire, or Universal as of all his Goods: the particular Executor is only chargeable so far as he Administers, and cannot meddle with the rest: But if one make A. an Universal Legatary, or give him the rest of his Goods, and make no other Executor, he shall be deemed Executor, at least Administration may be granted to him. Two are made Executors, one dieth, his Executor may not join with the first Executor in the execution of the Will: and if such Executor of Executor, have any of the Testator 's Goods, the first Executor may have an Action for them, and if the surviving Executor die intestate, yet the Executor of the Executor cannot meddle. Also if one Executor be a Babe, or beyond Sea, the other is admittable in the mean time. If all or one Executor, refuse to undertake the Executorship, the other may sue or be sued: But first there must be summons and severance: but if the refusing Executor afterwards become willing, he may join with the Executor and be admitted, and if he release a debt due to the Testator it is good, so it be released before judgement. One releases a debt due to A. and aftrr takes Administration of the Goods of A. the release is void, for that there was no right of Action at the time when it was executed. Two or more Executors, are named, all refuse but A. and he proves the Will, and after maketh B. his Executor, and dies, the rest who refused may not join with B. but he may sue, or be sued alone, for the first Testator 's Goods, Bro. Tit. Exec. Dyer 35. fo. 160. Divers Executors are named, one getteth possession of Goods, the other have no remedy against him for any part, for one Executor may not sue another, but in case the Testator give to one Executor the residue of his Goods, he may retain them or sue any other that holds them; but if he give all his Goods to his Executors, they are to be divided and the Ordinary hath power to prevent fraud among them. But if one Executor die, the survivor shall have his part, unless the Testator appoint that the Goods shall be equally divided, for those words (equally divided) in a Will, do make a Tenancy in common. Two Witnesses void of exception, sufficient to prove a Will: but if the Testator ordain that one Witness whom he nameth and trusteth shall prove the Will, and he doth it, this is good proof; But a solemn Testament must be proved by seven Witnesses, and every one must set his Hand and Seal to it. Any Language, Hand, or Character is good for a Will, so that it may be understood, & vitium Scriptoris will not hurt, for as falsa Orthographia non vitiat Chartam: Sic nec Testamentum. In Nuncupative Wills and Testaments it is good to avoid obscurity and ambiguity. CHAP. VI What Persons may be capable of Executorship or Legacies. A Testator may exclude his own Children, and make a Stranger his Executor, or Villain; if he make a Villain of his own Executor, it is a manumission; but a Villain of another being named Executor, may have an Action against his own Lord. A Woman sole is Executrix, she marries, her Husband alone may release a Debt due to the Testator. An Infant Executor, may release a Debt due to his Testator, during his Minority, so as he receive due satisfaction for the same. If a Child be under 17 years, he must have a Tutor, and such Tutor may sell any of the Testator 's Goods, but for necessity only. A Testator making his Debtor Executor, the Debt is extinguished if he prove the Will: Also making a Creditor Executor, when he makes an Inventory, he may detain his own Debt first. A. and B. bound to C. for Money, C. makes A. Executor, by this the Bond is released; A. indebted to C. the said C. makes A. and F. Executors, A. dies, F. shall have no Action against the Executor of A. for that Debt: But if the Testator be indebted to A. and makes him and B. Executors; if A. refuse to prove the Will, and B. prove it, A. may have Action for his Debt against B: so Debt by Testator is not extinguished by naming a Creditor Executor, unless he Administers: But Debtor refusing to Administer, being named Executor, the Debt is extinct unless there want Assets to pay Creditors. A College, City, or University, may be appointed Executor: but an Apostatae is incapable to take or make Executor: So Felon attainted, and excommunicate persons. Churchwardens, are no lawful Corporation in every respect, but in some respects they are such a Corporation, as may sue for a Legacy given to the Parish. Convict Recusant at the Death of the Testator, or time of Administration granted, disabled to be Executor, Administrator, or Guardian in Socage or Chivalry. See the Stat. 3. Jacobi. CHAP. VII. Of the several kinds of Executors. THere are three sorts of Executors. 1. From the Law, as the Bishop, or Ordinary. 2. The second is made by the Bishop or Ordinary. 3. The third by the Testator himself. If an Executor refuse, or cannot prove the Will, the Ordinary may grant Administration, cum Testamento annexo, and this Administrator is charged to perform that Will, and is called Executor Dativus, for he is the Ordinaries Deputy or Steward. The Ordinary may call to an account, and revoke his Authority, and such revocation may be secret or employed, as Administration granted to A. and after to B. the grant of the later revoketh the first, as a latter Will revokes a former, yet all Acts done by A. before such revocation are good, 27 H. 8.26. per. Fitz. 4 H. 7.14. per Tremaile. Bro. Novel Cases 330. Executor Testamentarius, being one so made by the Testator, may without Authority from the Ordinary possess himself of his Testator 's Goods and Chattels, and after probate of the Will, may commence Actions. But if he be a mere Executor, he may not convert the residue of the Goods to his own use, but be accountable for them, neither is he to have any other benefit than what is appointed by the Will, or allowed for his charges or pains by the Ordinary, and if such Executor die intestate, from thenceforth his Testator shall be said to die intestate, and Administration de bonis non Administratis shall be granted. An Executor (some say) is not compellable to prove the Testament before citation: but if he be cited and refuse, he shall lose his Legacy, and the Ordinary may grant over Administration to another, until he will accept, etc. but if he hath meddled with any of the Testator 's Goods, he is compellable to stand to it. If Administration be granted, where a Will may or can be produced, and the Executor hath not refused, the Executor may bring an Action of Trespass against such Administrator, if he meddled. Vid. Br. Abridgement des cases edit 1599 Tit. Administ. 112. fo. 183. To him that is desirous to know, whether it be better to accept, or refuse Exccutorship it is to be known. That, Executor is chargeable to Creditors so far as the Goods do extend, but for Debts due to the Testator, he shall not be charged with Asse●s, for they are things in Action, and not in Possession, yet he must use diligence to obtain, and get them in. The Heir shall have none of the Goods or Chattels of the Deceased, nor shall the Executor have any of the Lands, Tenements, or Hereditaments, unless the Will appoint them to sell Lands, for which if two or three be appointed, and some refuse to prove the Will, the rest that prove it may sell notwithstanding. If the Testator appoint his Executor to sell Land, and to distribute the money in pios usus, and they enter and convert the profits to their own use, for two or three years, the Heir may enter upon them, and exclude them, for the Franktenement is in him; neither if one Executor die before sale, may the survivor sell, but contrary if the limitation be for payment of the Testator 's Debts, for then the surviving Executor may sell. 39 Ass. 17. And it seemeth by the issue in that Book that any one of the Executors may by himself sell the Land without his Companions though they be alive, and notwithstanding that they have but a power and Authority given them, which is joint, and in most cases must be performed according to the limitation, but it seemeth that, that is admitted for the special respect the Law hath to have the Debts of the Deceased paid. Vid. Fitz. Tit. Ass: 336. Et. Executors 117. An Executor may recover or distrain, for Rents, Fee-Farms, Annuities, and Arrearages, as his Testator might have done; Also the Husband may do the like, for rend due to his Wife she being dead. An Executor of an Executor in all cases may sue for the first Testator 's Goods, and be sued for his Debts, as the first Executor might: neither shall the Goods of the first be put in Execution for the second Testator 's Debt, but those Goods must come to the second Executor by relation, and thereby the property of them which was before in the first Executor, is conveyed to his Executor. A. being Administrator to B. names C. his Executor and dies, C. may not meddle with the Goods of B. but new Administration shall be granted to the Friends of B. If an Executor after due admonition given, refuses to prove the Will, he shall lose his Legacy, but contrary if he were not summoned to stand to it. Neither doth a Wife lose her thirds, nor Children their filial portions by refusing to prove the Will. A Wife Executrix cannot sue or be sued without her Husband, but she may do any extrajudicial act, as receive or release Debts, or pay Legacies without her Husband: But if she die he can no more meddle: And such Wife Executrix may make her Will, and name an Executor. If there be three or four Executors, two or one may release any Debt without his companions, unless it be upon Judgement: But it is not so with Administrators, for they have but one Authority given them by the Bishop over the Goods, which Authority being given to many is to be executed by all of them together. An Executor must pay Debts, before Legacies, else if thereby arise a want of payment of Debts, he shall pay out of his own Estate. Here note, that of Debts, some are to be preferred before others, Cro. Eliz. 646. as Judgement before Recognizance, etc. 5 Rep. 28. Harrison's Case, Leon 3.270. Bond and Bayl's Case. So some Legacies are to be preferred. 28, 29 H. 8. Dyer 32. 4 Eliz. Dyer 280, or 208 Dyer. 7 Eliz 232. As to the time for proving a Will it is Arbitrary, first year or second, Time. or when it shall please the Ordinary to send a citation. The duty of the Executor, is to prove the Will, pay the Testator 's Debts, Office. and Legacies, and make an account for the residue, and therefore the Inventory ought to be made before the Executor meddle with the Goods; Into which Inventory are to be put, Goods, Chattels, Merchandizes, all Rights and Leases, Emblements, Corn growing, (but not Grass or Trees growing, for those belong to the Heir, so do things affixed to the freehold, also Glass in Windows, nailed or not nailed, Wainscot and the like) but all other Goods and Chattels are to be put into the Inventory, and the Ordinary may appoint a time to bring in the Inventory. See the Stat. 22 & 23 Car. 2. Cap. 11. But an Executor meddling with Goods, unless for Funerals, etc. not having made an Inventory, is subject to Ecclesiastical censure, although the Acts done by him before Probate are good in Law. Testaments are to be proved before the Bishop of the Diocese, except in certain Signories or Jurisdictions, or where there are bona notabilia in divers Dioceses; and good Debts amounting to 5 l. due by one or more in some other Diocese or particular jurisdiction, yet within that Province, do make bona notabilia as well as Goods and Chattels, real or personal. If the Metropolitan pretend that a Man within any Diocese of his Province die possessed of bona notabilia, where indeed he hath none, and grant Administration, therefore of the Goods, this is not absolutely void, because the Metropolitan hath Jurisdiction in all Dioceses within his Province, yet nevertheless it is voidable. But if the Ordinary of a peculiar Jurisdiction, grant Administration of the Goods of one dying possessed of bona notabilia, this is absolutely void, even for the Goods in his own jurisdiction: for the Prerogative Court ought to grant the same. A Will is to be proved two ways, the 1. in Communi forma, and here no person is cited, but the Executor makes Oath that it is the Testator 's last Will. Or, 2. In form of Law, and this must be done per testes wherein there must be publication and a definitive sentence. A Will proved in common form in absence of them which have interest, the Executor is compellable to prove the same again in form of Law, and if the Witnesses de dead, it will endanger the whole Testament, unless 10 years be past since the Probate: But being once proved in form of Law, no more to be drawn in question. Fees due for Probate of Wills are, if the Goods be under 5 l. sixpence to the Register; if above 5 l. and under 40 l. three shillings sixpence to the Ordinary, and to the Register one shilling. If above 40 l. to the Ordinary 2 s. 6 d. and as much to the Register by 21 H. 8. For the copy of the Will and Inventory, no more than was paid to the Register for Probate, or a penny for ten lines at the Register 's Election: upon forfeiture of the overplus taken, and 10 l. to the King and the Informer. The course of Debts in order to payment we have already spoken of, we shall only here note, that if there be divers Obligations, the Executor may pleasure which of the Creditors he pleaseth first, and the other have no remedy, though Assets be wanting. Doctor and Stud. Lib. 2. Cap. 10. If two commence Suits for several Debts, he that first obtains Judgement shall first be paid, an Executor may plead a dilatory plea, as in abatement of the Writ, by Essoyn, imparlance to one, and then another commence a Suit, to whom he confesses a Judgement, that Judgement shall be satisfied first, though the others Suit was commenced before: But an Executor may not plead a false plea to delay him that first commenced Suit. Doctor and Stud. Lib. 2. Cap. 10. Mortuaries. No Mortuary is to be paid under ten marks in movable Goods, upon forfeiture upon surplus, and 40 s. to the party grieved, by 21 H. 8. neither is it payable but where accustomed, and due but in one place, where the party was most inhabiting. Above ten marks clear, his Debts being paid, and under 30 l. shall pay for a Mortuary 3 s. 4 d. between 30 and 40 pound, 6 s. 8 d. above 40 l. shall pay 10 s. and this is to be paid before a Legacy without defalcation. Account. It is necessary that an Executor make his account and procure his discharge by Acquittance or otherwise, for he is subject to be called to an Account judicially, both by Creditors and Legataries, and that within a year, or when the Ordinary pleases, wherein he must declare what Goods and Chattels, have come to his hand, what Debts and Legacies he hath paid, in which lesser sums may be proved by his own Oath, and greater sums by Witnesses: And the residue ought to be disposed as heretofore in pios usus, but the Executor hath usually detained them, upon pretence more Debts may appear. But see what is now to be done by the new Stat. 22, 23 Car. 2. Cap. 11. In this account, all Funeral expenses, just payments, and reasonable charges are to be allowed. An Executor not being resolved to meddle as Executor, then must not Administer the Goods as Executor, for than he is compellable to undertake the burden: in the mean time he is subject to all suits of Creditors, and cannot sue for want of the Will being under seal of the Ordinary. If a Creditor take but so much of the Testator 's Goods as his own Debt amounts to, yet he is Executor in his own wrong: But to take the Testator 's goods to preserve them from perishing or to dispose of part thereof for the Funerals, or to make an Inventory, makes him not Executor in his own wrong. CHAP. VIII. How Testaments become void. TEstaments become void by several means, as when they are made through fear, immoderate flattery, fraud, incertainty or imperfection, or the Testator hath not animum testandi. But if such a Testament after the fear is passed be confirmed or ratified, it will be good. Error in quality to avoid a Will is this, as I make my Cousin J. my Executor, or because thou hast lent me 100 l. I give thee 100 l. or for that my Son is dead, thou shalt be my Executor, when in truth there is no Cousin J. no Money lent, nor his Son dead. Error in quantity is, when a Testator meaning to bequeath a fourth part of his Goods, it is set down half, or intending to give 50 l. the Writer setteth down 100 l. or è contra; or I give to A. all the Debts he or B. oweth, and he owes nothing, all these bequests will be void. But if one give A. 10 l. which he owes him, if the Testator be in good memory at the time of the gift this is good. So if one give 10 l. being in such a chest, and there are but 5 l. found, yet it will be good for the 5 l. But if the Testator believed 10 l. to be there, unless the Executor can prove that the Testator knew there was but 5 l. it shall be good for the whole 10 l. A Will may also be void for incertainty, as I make one Man of the World my Executor, unless there be plain proof whom the Testator meant, it is absolutely void. One made his Will, and named J. S. his Executor, whereas there were two or three of that name, this shall be void to all, unless the Testator 's meaning appear to one or one more familiar or friendly with him, than he shall be admitted; or if they be all of Kin, the nearest of Kin shall be admitted. — If one give a Legacy to a Church, his Parish Church shall be understood, so a Legacy to the Poor, shall be intended to the Poor of his own Parish, but if he have any poor Kindred, they are principally to be regarded. It hath been held that the Mother is not a Kin to the Child, and to that purpose it was long argued in the Duke of Suffolk's Case, 39 H. 6. fo. 31. but since hath been adjudged to the contrary, 3 Rep. Ratcliffs Case, and 21 H. 8.5. Or if one make the next of Kin Executor, the Mother shall be admitted before any but his own Children, viz. before either Brother or Sister, according to the Stat. 21 H. 8. See Bro. Novels Cases 5 E. 6. Num. 415. A Testator gives a Horse and hath none, yet it is a good Legacy: the contrary hath been held by some of Sheep, or a gold Chain, that if there be none, the Legacy is void, but the better opinion is that it is good. A Legacy of Lead, Money, Wheat, etc. is uncertain, and so naught, but if it be added for building Bridges, repairing Highways, maintaining or relieving Poor, then so much as by the Ordinaries appointment shall be thought fit, shall go to perform the intent. Bona animi, corporis, fortunae, viz. Virtue, Health, Wealth, are by the civil Law termed. 1. Moral. 2. Natural. 3. Casual. The first and second are not in our dispose, and therefore the Law takes notice of the third, viz. casual, under which the civil Law takes in Lands, Leases, Obligations, Debts, and all other Goods, his Debts paid. But the Law of this Realm takes in only household-goods, Chattels personal, etc. But nothing that is of the Nature of freehold, nor Leases for years, (much less for life) nor Chooses in Action, as Debt upon promise or Obligation. Chattels signify all Goods, movable and immovable, unless such as be of the nature of freehold; Of Chattels some be real, as Leases for years, some personal as movable Goods, Money, Plate, Householdstuff, etc. but Hawks and Hounds are no such Goods. Goods movable are such as actively move of themselves, or passively are moved by others. immovable Goods are such as are not dependent upon the person, but to some other things, as Trees growing, Fruit on Trees, Lease or Rent for term of years. But no Lands, Tenements, or Franktenement. Admit four several persons, make four several Wills, wherein the first gives A. all his Goods, the second gives A. all his Chattels, the third gives A. all his movable Goods, and the fourth gives to A. all his immovable Goods. In this case, A. is to have the first Testator 's whole Estate, being in effect his Executor, Heir or Universal successor: Also he is to have all his Debts, and pay all his Debts, and all his Money of what Coin or Metal soever. And so it is as to the second Testator in all things, And if A. die before he prove such Will, Administration is to be granted to the next of Kin of A. not of the Testator: But the Testator giving A. all his Goods or Chattels, if he make B. his Executor, B. must enter to all, prove the Will, pay the Debts and deliver over the residuum to A. being Universal Legatary. But if the Testator have 100 l. and being indebted 20 l. bequeathes the one half of his goods to his Wife, the whole to be be divided, between her and A. his Executor, here the Wife shall have 50 l. without defalcation, and the Executor must pay the Debt out of the other half, which are Assets in his Hands, and this case was so adjudged by two chief Justices and others. For the third Testator A. must have bona moventia & mobilia, all actively and passively moving or movable, as also Fruits growing by Industry, as Corn, etc. but not Natural, as Grass, etc. but if Land be appointed to be sold by Will, the Money thence arising shall not be accounted as any of the Testator's Goods or Chattels: Or if a Testator have bagged up Money, ready shortly to be paid for Land bought, this may not be disposed of in prejudice of the Heir. For the fourth Testator, by the word immoveable-Goods, pass all natural fruits, as Grass growing, Fruit on Trees, Fish in a Pond, Pigeons in a Dove-Coat, etc. Goods movable and immovable, are given as a Legacy, it hath been much disputed, if Debts and Obligations pass, and it is agreed that they do, and also Rents and Arrearages thereof behind; but such a Legatary of movable and immovable Goods cannot sue for such Rent, Arrear, or Debt in his own Name, for the Executor must recover them, and then may he sue the Executor in the Ecclesiastical Court for the same, and if the Executor refuse to sue the parties, the Ordinary shall compel the Executor to give one or more, Letter or Letters of Attorney to the Legatary to sue for the same in the Executor 's name, but to the use of the Legatary himself. A. gives all his Householdstuff to B. by this B. shall have Tables, Stools, Forms, Chairs, Carpets, Hang, Beds, Bedding, Basins, Ewers, Candlesticks, all sorts of Vessels, serving for Meat, Drink, being either of Earth, Wood, Glass, Brass or Pewter, Pots, Pans, Spits, Kettles, and such like; But Books, Weapons, Tools for Artificers, Cattle, Victuals, Corn in a Barn, Carts, Plough-gear, and Vessels fixed to the freehold are not so esteemed. Plate used in the House, as Cups, Bowls, Candlesticks, etc. are Householdstuff, but such as are kept only for show or Ornament, being no otherwise used, shall not be reckoned as Householdstuff, unless the Testator's meaning appear in plain words otherwise. If after a Testator 's Death, there be found two Wills, the one made in favour of his Children; the other in favour of Strangers, that to the Children shall be confirmed. But if one Testament be proved, and the Executor possessed of the Goods, it is not afterwards to be disproved, or he dispossessed by means of another Will of the same date. There are two Testaments, one to Children, another ad pios usus, both of one date, that to the Children shall have the priority. A Legacy is given of all his Debts, no more will pass than those Debts then due, not such as grow due after the Will made. So if a Testator releases to A. all his debts, such as grow due after the release made shall not be discharged. The like of Apparel, Books, Householdstuff, etc. But in these and all Cases the mind of the Testator must be respected. A Testament begun, though not finished is good, so far as it is proceeded in. A draught of a Will not acknowledged by the Testator is no more a Will, than a draught of an Obligation is an Obligation unsealed. A Testament found written, with the Testator 's hand in a Chest amongst other Writings of account shall be good; if the same be dated and perfect. The last Testament is best, and doth abrogate and annul all former, although the Executor refuse or die before, or after the Testator. But if the latter Testament be imperfect or the Testator compelled by fear or fraud to make it, it is void. A Testament made 10 years Before death is nevertheless good whatever after may happen: But a Testament is presumed to be revoked, when the Testator and Executor become great Enemies; Also when the Testator in heat of Anger conceived against his Son, or such as should have Administration and afterwards they are reconciled. A Testator after a Will made is attainted of Treason, Felony, Heresy, or Apostasy, etc. unless he obtain a pardon or be otherwise restored, the Will is naught. If an Executor cannot, or will not prove a Will, it loses the name of a Testament, and must be affixed to an Administration, yet the Legacies, are still due. An Executor must be capable at three several times. 1. At the making of the Will. 2. At the death of the Testator. 3. At the time of Probate thereof. But in conditional Testaments, the Executor and Legatary being capable at the time of the condition to be performed is sufficient. Ademption of Legacies. A Ship was given for a Legacy, which was afterward so repaired that little, yet some of the old remained, that makes the Legacy good; so of a house repaired after a Will made: but if the old house be wholly pulled down, and new builded of other stuff afterwards, this makes the Legacy void, so if blown down or fired by chance and new built: or if the Testator after the Will made, sell or give away the same, this takes away the Legacy. A Testator gives an Obligation to A. and after this the Obligor pays the Testator the Debt in ademption: but if the Testator constrain him to pay by course of Law, there the Legacy is extinguished. Transferring of Legacies, From one to another; as a Legacy is given to A. provided if A. will not do such an Act to be void to him, and B. to have it: A. dies, yea before he can do it, here the Legacy is not transferred. A Testator gives 100 l. to A. upon condition he pay for 10 years 10 s. a year to the poor of etc. and after he gives the same 100 l. to B. without any condition, yet B. must perform the first condition. Lands are given by Will, viz. in the beginning of the Will to A. in Fee, in the latter end to B. in Fee; this is to be decided by the Temporal Law, whereby B. is to have it, because it is the latter devise, & ratio partis ad partem ut totius ad totiem. If Legatary become Enemy to the Teltator, or give him a secret cause of hatred, though unknown to the Testator, by which (it may be supposed) that if he had know it, he would have taken away or destroyed the Legacy, this will make the Legacy void. If a Wife departed from her Husband without consent, or a Legatary accuse his Testator of a capital crime, or become a capital enemy to the Testator's Brother, or if the Legatary neglected to help him in sickness through want whereof the Testator perished, or grievously defamed or slandered the Testator, any of these will cause him to lose his Legacy. A Legacy of 100 l. is given to A. to be paid him at Easter, 1675. A. dies before Easter, yet his Executor or Administrator shall recover, because it was due at the death of the Testator. But if 100 l. be given to A. when she shall be married, and she die before marriage, the Legacy is lost. But if it be given for and towards her marriage, and she die before, yet her Executor or Administrator shall recover it. Debt is brought against the Ordinary, who, pending the Writ, commits Administration to J. S. the first Writ shall abate, because the Ordinary is compellable to grant the Administration by the Stat. Bro. Tit. Administ. 39.31 E. 3. cap. 11. Rast. Administrators. 1. and 21 H. 8. cap. 5. Rast. Probate of Testam. 3. Where the Ordinary commits Administration, he may revoke it and grant it to another (but all acts done by the first Administrator shall be good) and so it was held in the case between Brown and Shelton for the Goods of Rawlins, where the Administration was committed to Brown and revoked, and committed to Shelton, because it was not an interest, but a power or authority only; which may be revoked: but the contrary is held of an interest certain. Bro. Administrator. 33. in fine. If an Executor plead fully Administered in an Action of Debt, and give in Evidence, payment of Legacies: The Plaintiff in the Action of Debt, may demur in Law thereupon, because such Administration is not allowable, in Law before Debts are paid. Bro. Tit. Assets inter manes 10. An Executor before Probate makes his Executor and dies, his Executor shall have Administration, 3 Eliz. Dyer 372. Isted's Case. Where an Executor hath the residuum give him, there Administration shall be granted to his Executor, but where the residuum is not so given, the next of Kin shall have it. Li●●le●on's Case. ●th. Report. I shall only add what hath very Learnedly been held by a most Worthy and Honourable Person; and of profound reading in the Law, concerning the Ecclesiastical Court, viz. That it had not Original Jurisdiction, and that what Jurisdiction the Church claims, was given to it by the King▪ and that is proved by four principal reasons. 1. That the Ordinary had not any power to dispose bona peritura. 9 Elizab. Dyer 255. 5 Rep. Needham's Case. 2. If a Debt were due to the Testator or intestate, the Ordinary had not power to recover it, nor could he commit it. Co. 2. Inst. 398. F. N. B. foe 91, 92. 3. It is a Lay thing, and some at this day have power to dispose, who are merely Lay. Co. 5.16. 5 Rep. fo. 65. B. 4. For the manner of Trial, it must be in the Temporal Court. 13 Eliz. Dyer 294. Much more might be said in this point, which for the greatest part being mentioned in the foregoing Book. We will here set up at present our rest. FINIS.