THE OFFICE AND DUTY OF EXECUTORS. OR A TREATISE OF WILLS AND EXECUTORS, DIRECTED TO Testators in the choice of their Executors and Contrivance of their Wills. With direction for Executors in the execution of their Office, according to the Law, and for Creditors in the recovery of their debts. Expressing the Duty, Right, Interest, Power and Authority of Executors, and how they may behave themselves in the office of Executorship. With divers other particulars very useful, profitable, and behooveful for all persons, be they either Executors, Creditors or Debtors. Compiled out of the Body of the Common-law, with mention of such Statutes as are incident hereunto. LONDON, Printed by T. C. for Andrew Crook, Laurence Chapman, William Cook, and Richard Best. 1641. The Preface. AMidst the Readers of these Discourses; some not yet unfriendly may ask, perperhaps, Quorsum haec, or Quorsum sic: why have we a tractate and discourse legal; or why in English and not rather in the Law language? To whom, yea, also to others, perhaps less inquisitive, it will be, as I think, a thing not unpleasing to hear some reason rendered, why I have set my head and hands to this work so little in use with those of our profession; why also in English rather than in the language wherein our volumes of Law are for the most part, and well-nigh wholly written. First, for the matter, viz. my thus commenting or making a tractate upon a legal theme. I have long and strongly conceived that the more Nobles, Gentlemen and others; shall be acquainted with the Law of the Land, and the justness, equity, prudence and providence thereof, the more they will love it and affect it; Igno●i nulla cupido, the want of knowledge of it causeth the leanness of love to it. Therefore to bring Nobles and Gentlemen into acquaintance with the Law, is a mean as well ●o advance it in their estimation, as to advantage them by it. I have long thought that we who are the Professors of our Law have been more wanting to it than to theirs, the Civilians and Canonists, who have written very many volumes: Spartam quam nactus es, have exorna, hath been said of old, and should be assayed anew. More wanting than others before us of our own profession have we also been as I think: yet as of old Britton, Glanvill, Bracton, besides not printed, Fleta and Ingham, did lead the way; so since Master Littleton, and more lately Sir Germin Perkins, Fitzherbert, Stanford, Crompton, Lambert, Kitchen, Sir Henry Finch, Dalton, have trodden this path; so as it cannot be taxed with novelty or singularity. I mention not relaters or reporters of judgements and resolutions, nor mere abridgers, nor Authors of Books of Entries, expressing forms of Declarations and Plead, etc. because these have trodden another, though for the Students and professors of the Law, a very profitable path. The tax and increpation of our late learned and judicious Sovereign upon us the Professors of the English Law, King Iames in his Preface to to his Book against Tobacco. as being wholly in effect addicted to our own private gain and advantage, with neglect of the public, had some strong operation upon me, howsoever upon others, setting for divers years past my pen on work, specially in Summer vacations upon divers particular subjects, whereof this is one and the first borne. To this I may add the Crown's expectation of somewhat legal to be published and set forth from time to time, as appears by the special Patents successively granted, and renewed for the sole printing of books of Law. There is one such in force at this present, and another long hath been in remainder and expectancy to take effect upon the expiration thereof. And now to adjoin Sic to haec, viz. the reason of my English writing to that of my writing upon a law theme. First receive the said late King's judgement touching both, expressed in one of his speeches printed. March 1609. Thus. I wish, saith he, the Law written in our vulgar language; For now it is in an old mixed and corrupt language, only understood by Lawyers, Note. whereas every subject aught to understand the Law under which he lives, etc. Herein, Andrew Horn, one sometime of our profession, In his Mirror of Justice. agreeth with the said late King, saying, Abusio est que l●s leges ovesque lour ench●sons, ne soient s●●us & conus deal touts: It is an abuse▪ saith he, that the laws with their grounds be not known by all. Ergo, to be in a tongue understood by all. More plainly and fally doth that our both well learned and well descended St. German, sing in consort with our said late scientious King. Lib. 1. cap. 24. For he first brings in the Doctor of Divinity, saying, that henceforth he will take more pain than before he had done, to know the Laws of England; for that knowledge is Multum necessaria & clericis & laicis, imo omnibus in hoc regno commorantibus, etiam in foro conscientiae. And this being in his first book written in Latin: After writing his second book in English, he expresseth that he so did for this reason, viz. To the end that it might be under stood by all. Which of us hath not heard it objected, that we the professors of the Law seek to hide and secret the knowledge thereof under this dark and distasted language, wherein the law is for the most part written, not that I hold it any just excuse for the nescience or negligence of any, that our books are not in English. Since, first, it were easy for any diligent and intelligent man, specially if acquainted with the right French language, so understand our broken or brackish French in a few days. Secondly, there be both statutes and some other law-books in English, which are neglected by the most. Thirdly, though care hath been in Parliament in Edward the third his time, 36. Ed. 3. c. 15. that Lawyers should plead, that is, argue and debate causes in English, which was often desired by the Nobles and Commons, till at last assented and enacted; 2. & 3. Phil. & Mar. cap. 6. in fine. and in Queen Mary's time care was taken that the Commissions of Purveyors should be in English, to the end that all subjects from or of whom they would take, might both see them to be persons authorised, and so also in what manner they are directed to use their authority, according to the Princes pious and princely care that his subjects should not be abused by his Officers: Yet for this affair, of having all the Law-volumes speak English, I have not heard nor read of any desire or endeavour in Parliament. Fourthly, If the Annals and Reports were in English, they are so replete with debates about forms of Writs, Returns, Plead, Essoignes, Imparlances, Protections, Vouchers, Aydpriers and Counterplees of both, and the like, as would easily distaste and discourage any not intending to profess and practise the law, from versing much in them, or passing through them. This therefore, as I think, would not much effect the expressed desire. The thing in my judgement fit and fruitful to produce that good effect, would be to have extracts of materials of the Law; and that not without some good choice and selection, composed in way of discourse, or tractate expository, and that in English. I cannot well see or comprehend how any one legal part or theme may be more useful to and for the generality of men, and consequently more generally expetible and wished for, than the office of executors. For who almost is there, who either is not, or may not be an executor or administrator, or at least hath not, or may not have to do with them, either to receive from them, or to pay to them debts or legacies. Or who is there above Forma pauperis that may not be a testator, or will maker, to the guidance of whom even in the choice of his executors, and contrivance of his will, it cannot but be material to know the office and duty, the right and interest, the power and authority of executors, yea, of each one executor where there be divers; yea, to know who may be made an executor, who not; who can make one, who not; how he may be fashioned, generally or specially; what shall come to him, what cannot be given from him; yea, what goods or chatels shall go from him, though not given from him. Besides the knowledge for those others necessary of the safest wards or locks for executors. Their Scylla and Charybdis, and the best advantage for creditors, etc. towards or against them. To me considering what parts of law were most behooveful to be communicated to all willing Readers, none appeared which could challenge of this the precedence, and therefore I gave it the first and leading place. Thus my own thoughts. But how far this discourse may be profitable to any, and to how many, aliorum sit judicium. How many know no more of these, than of the way of a ship upon the Sea? Lastly, these are not intended for the learned of our profession, who have drawn or can draw out of the same fountain which I did, and so need not my help; but for their sakes who are not professors of the Law: yet so as if any young Students may in any part receive fruit by my labour, I shall not grudge or repine at their so doing. Bonum quo communius, eo melius. The first Table. Chapter I. The being of Executors; and therein 1 OF the relation betwixt a will and an executor, whether one may be without the other, Fol. 2. 2 Of the several kinds of wiles, 7 3 What will amount to the making of an executor, and what words requisite thereunto, 10 4 How an execut●r or his executorship may be limited or qualified in special manner differing from the general, 12 5 Who may make an executor, 17 6 Who may be made executors, 21 7 What one may give or bequeath by his will, ib. 8 Of the revocation and countermand of wills and new publication, showing how a will or executor once made may be unmade, and what shall amount to a revocation total or partial, and what to a new publication, 25 9 Of new publications, 30 Chap. II. The having of executors, showing the state of things instantly upon the testators death, before any Will proved. 1 WHat is wrought by the gift of a thing certain and known, as the white Horse, the red Cow, etc. 33 2 Of a bequest to an executor, 34 3 Of a discharge or release by will to a debtor, 36 4 Of making the debtor executor, 37 5 Of making the creditor executor, 39 6 What may be done by or to an executor before proving of the will, 42 7 Of refusal to prove the will, and therein of administration forecluding refusal, 45 8 What shall be said, such a meddling and administering by an executor, that he cannot refuse after, 47 9 Of the force and effect of refusal, 51 Chap. III. Of proving Wills. 1 HOw, and where, and before whom wils aught to be proved, 53 2 Bona notabilia, what they be, 55 3 Which may entitle the Metropolitan, 56 4 Of the validity and invalidity of right or erroneous probates, 58 5 Of the relation of probate and refusal, 60 Chap. IV. Of fees payable for probates. 1 OF copies of wills or inventories, and what fees due per stat. 21 Hen. 8. cap. 5. 61 Chap. V. Of goods and chattels. 1 WHat things shall come unto executors, and said to be assets in their hands, and what not, 63 2 Of chattels real possessory, 64 3 Some cases doubtful or less clear touching chattels real, 66 4 Of chattels personal, 68 5 Cases more doubtful touching chattels personal, 70 Chap. VI Of things not actually in the testator, yet accrueing to the executor, 1. by action or suit, 2 by condition or covenant, 3 by remainder or increase. 1 OF things in action, 79 2 Chattels come to executors from the testator, yet not assets, 88 3 Assets which be no chattels, 90 4 Four things personal in action changed into things real, & è contra, 92 5 A case of equity opposing law, 93 6 Of things accrueing by condition, ib. 7 Of things accrueing by covenant or assumption, 101 8 Of things accrueing by remainder or increase, 102 Chap. VII. Of the interest which the executor hath in the testators goods. 1 OF his interest in general, and how different from the interest in their own proper goods, 106 2 Of the alteration of property in the executor's hands, so as some become his own which were the testators, 110 Chap. VIII: Cases between the heir and executor, Wherein divers questions are resolved concerning their distinct rites, 112 Chap. IX. Of suits by or against executors, and of the relation amongst executors. 1 All at but one represent the testators person, and must join and be joined in suit &c contra, A. 115 2 Where one alone must answer suit, and how, B. 117 3 When they differ in plea, the best shall be taken, but one may confess alone, C. 121, 122 4 One as well as all may give or release the whole, D. 121, 122 5 One cannot give nor release his executorship to a coexecutor or any other E. 121, 122 6 The possession of one executor is the possession of all the rest, F. the folio here is wrong, 121 7 If the surviving executor die intestate, the testator is intestate though the other executors left executors. G. 121 8 The exec. so represents the person of the testator, as that the word assignee only makes him capable, H. 122 9 What change by death of the testator in a proceeding in suit, I. 123 10 Proceeding to or in execution, where without a Scire facias, K. 123 11 Where the executor stands in his own quality, where in his testators, M. 124▪ 125 12 Where one executor alone may sue, N. 127 13 Where some executors will not join with the rest in suit, the rest may sue alone, O. 127 14 Where by the death of one executor, plaintiff, or defendant, the writ is abated, P. 128 Chap. X. Of the possession of executors, or their actual having. 1 What shall be said so to come to their hands as to charge them, 1 in things real, 130 2 in things personal, 132 2 What shall be said, such a losing or going from them as to excuse them, 137 Chap. XI. Of an executor having assets, how far and where he is chargeable and liable to action. 1 PAyment of debts by specialty or record, 141 2 Of debts or duties by simple contract without specialty, 145 3 Of debts without either contract or specialty, 149 4 Of covenants charging executors by deed or specialty, 150 5 Of wrongs done by testators, and how far the executors are liable to make amends, 155 THE OFFICE OF EXECUTORS. THe things considerable touching Executors, Introduction may all in effect be reduced to these three Heads, viz. 1. Their Being. 2. Their Having. 3. Their Doing. By the first, I intent their creation, or constitution with, the incidents thereto. By the second, their Interest, Fruition, or Possession. By the third, their Managing and execution of their Office. This last was, and is the thing principally in my intention, and the chief aim of these Discourses; but necessarily it must have some Ingredients, some Concomitants, and some Consequents; as he that traveleth from London to York to speak with I. S. must needs pass by & thorough other Towns and Villages, and speak with divers other persons in his journey and return. To come first to the first; therein we will consider these six things. 1. Whether an Executor and a Will be such Relatives, that one cannot be without th'other; and therein of the several kinds of Wills. 2. How, and by what words an Executor may be made and created. 3. How he may be in special manner (different from the general) fashioned, limited or qualified. 4. Who may make, or be made an Executor, and who not. 5. What one may give or bequeath by Will, what not. 6. How a will or Executor once made, may be unmade, and what shall amount thereunto, viz. To a revocation total or partial, what to new Publication. Of the relation between a Will and an Executor. AS to the first, the very name of Executor purporteth in the general, one that is to execute somewhat, or to whom the execution of somewhat is committed, or recommended. In our particular therefore, an Executor of a Will must needs be such an one to whom the execution and performance of another man's Will after his death is commended, or committed: Or who is constituted and authorised by the Testator, or Will-maker, to do him that friendly office. Hence it follows necessarily, that a Will is the only bed wherein an Executor can be begotten or conceived, for where no Will is, there can be no Executor. And this is so conspicuous, and evident to every low capacity, that it needs no proof nor illustration. On th'other side, though much be written in name of a Will, many Legacies bequeathed, and many things appointed to be done: Ploughed. eom. 1851 a. in Wood●. and Darcies Cases, so expressly said. Yet if no Executor be named, here is no Will; for these two be so relative, and reciprocal, as that one cannot be without th'other; if no Will, no Executor; if no Executor no Will. Yet here two Cautions are to be affixed. Testamentum quasi testatio mentis. 1. That a man's mind, will, and intent, touching the disposition of his goods, being declared, although for want of naming an Executor he die intestate, so as Administration is to be committed: Yet for that here is not only an inchoation or inception of a Testament, but so far a progression therein, as Testatio mentis, that is, the manifestation of the pa●ty deceased and owner of goods; therefore this mind and intention of the Intestate being notified and made known to the Judge, who is to commit Administration, is usually annexed (as I take it) to the Letters of Administration, and meet so to be, as a direction, for, and to the Administrator; as well as the Will fully, and perfectly made, but refused to be proved by the Executor, which is usual. Another Caution is, That where a man seized of Land in Fee-simple, disposeth the same, or part thereof by his Will in writing, this standeth good for the whole or part, according to the difference of Tenure, although no Executor be named; so as the party dieth Intestate, and Administration is to be committed as touching his goods, and yet hath a Will as touching his Lands. This may seem strange, that the reason thereof is an Act of Parliament, enabling to dispose of Land by Will in writing. And for that Land, is not properly Testamentary, neither hath the Executor (if any be) anything to do or intermeddle therewith; and therefore is the making or not making of an Executor, nothing pertinent to the validity or invalidity of this devise or disposition of Land by Will. So, as though where there is not Testatio mentis, there is not Testamentum; yet may there be the first without the later. Having seen that bequests of Legacies without making of Executors, doth not amount to a Will. Let us now consider, whether the sole making of Executors in the name of a Will, without giving any Legacy, or appointing any thing to be done by his Executors? Whether I say, this be, or amount unto a Will or not? Since hereupon the matter nothing is willed, and consequently nothing rests to be executed by the Executors, whose Office, as hath been said, is to execute the Will, Mind, and Intent of their Testator, and Vbi non est Testatio mentis, Summ. Silu. fo. 32. b. non est Testamentum, saith the Cannonist. For answer hereunto, confessing that indeed to be the Office of an Executor; I yet conceive confidently, that in the Case above put, there is a good Will and as a Will, it is to be proved and approved, for these Reasons. First, for that the main and principal part of an Executors Office, and that which most concerns the soul of the Testator (as our Books speak) is the payments of his debts. Now, who knows not, but that the very making of an Executor, is the constituting of such a person, who is to pay all debts; and for that cause and end, principally is to have, and enjoy all the goods and chattels of the Testator, and all sums of money to him owing, as the naming of A. and B. Executors is by implication a gift, or donation to them of all the goods, chattels, credits, and personal estate of the Testator, and the laying upon them an Oligation to pay all his debts, and making them subject to every man's suit and Action for the same. And if the Law speak thus much sense; Quod necessario subintelligitur non deest; What need then the party express it in his Will? If he had willed more than this, as to have given this or that in way of Legacy, it had been needful for him, so to have set down in his Will, but there is no mere necessity that every man should give Legacies: the estates of many will not do more than pay their debts, nor ofttimes so much, so as if they should give any Legacy, it must be a dead and void gift. And suppose a man have much more, and intendeth all to his wife, brother, or sister, or other friend, his debts being by such person, paid since the very making of that party Executor, without any more, amounteth to thus much, and effecteth this; what needeth then more words? Frustra fit per plura quod fieri potest per pauciora; as we often speak touching legal passages; It is needless to write four lines where two be sufficient. Nor is Testatio mentis hear wanting; since the Testator hath made known who should have the Administration of his goods for payment of his debts, and it is to be presumed he had no more special Will; since he did not declare more, but left his Executor further to have and do, Prout lex postulat: And who can say here is nothing to execute? Is the suing for, and collecting of debts due to the Testator, and the payment of debts owing by him nothing? Nay, it is rather in hoc negotio, the Vnum necessarium. Besides, the making of an Executor is a designment, of a person to be the Testators assign to whom, and by whom divers, things may be feasible by virtue of covenants, bonds, or other assurances, as after where we come to show how the Executor represents the person of the Testator will appear. Also of one, who, as our Books often speak, is to dispose the Testators goods for the best advantage of his soul, but instead of that (since as the tree falleth so it will lie or rest) I will say, as is most for the honour and reputation of the Testator. Of the kinds of Wills. NOw Wills are of two kinds, or may be two ways made, viz. either by writing, or Nuncupative; that is, by words not put in writing, 4. H. 6. 1. 10. 8. 4. 1. during the Testators life: for after the Testators death, If it be written and brought to, and approved by the Testator in his life, it is a Will in writing. this Verbal Will must be reduced to writing, and have the seal of the Ordinary, or Judge spiritual thereto affixed; and then is it as effectual, and of as good validity as if it had been in writing in the Testators life time; 14. H. 6. 5. vide 5. H. 5. 1. M. 15. & 16. Eliz. and so doth the Common Law allow and approve thereof. But I advise all to make Wills by writing, and not to leave them to the doubtful fidelity, or slippery Memory of witnesses: for, as of Leases Parroll hath been said, that they be Leases perjured, or of perjury: So of Wills Parroll may be feared. Besides, many times a man doth speak and declare this or that, as part of his Will, which his wife, child, or friend dissuading, he letteth that purpose and part of Will to fall, & departs from it: Yet witnesses wishing it to stand, will perhaps affirm it as part of the Will. As for a Will, gift, and disposition of Land of inheritance, if it be not fully written before the death of the Testator or Donor, so far (at least) as concerns the disposition of Land, it cannot be for that part made good, by reducing it to writing after his death, as for goods and chattels it may. Yet if it be written before the death of the Testator, though it never be brought to him, or read to him, after the writing thereof, it is good enough: and that not only for Land, 〈…〉 Dy. 72▪ as the Case in King Ed. 6. his time was, but also for goods and chattels, so as there be an Executor named. But whether shall we say, that this is a Will Nuncupative or in writing? And surely I think, that this is a Will in writing, and not verbal only, though it want subscribing; for we know, that many cannot write their names, but only marks, and what is that? Nay, suppose one want hands, and cannot write so much as his name; yet doubtless this man may make a Will in writing, that being written by his direction, as his Will which he dictated: nor is the subscribing of the name of the maker, any essential part of a Deed, much less of a Will, which needs not sealing as a Deed doth. Now put we the case on the other side, that many Bequests or Legacies be named in a Will, and many things expressed to be done, but no Executor is named in the writing, only by word of mouth, A. and B. be named Executors. This I think confidently is no Will in writing, but Nuncupative only; for that one essential part of the Will, viz. the making of Executors, is wanting in the writing. Nay, the appointing of him Executor, who is named in a note, left with A. B. is no sufficient making of an Executor, saith the Summist. Tit. de Testim Summ. Silu. fo. 443. b. And of such Nuncupative Will, Master Perkins reasonably saith, that it properly hath place, So if he survive and live long time, not causing it to be a written, or attested by witnesses; me thinks it should not stand as his Will. when one suddenly taken with sickness violent, dares not stay the writing of his Will, for fear of prevention by death; and therefore prays his Curate and others, to witness what his Will is. To this Will not written, there must be seven witnesses, and such as come not by chance; but are especially called for that purpose, Idem supra fol. 444. b. saith the Summest. What shall amount to a making one Executor, or what words requisite thereunto. HAving before made it to appear, that the being of an Executor, is an essential part of a Will, and so de esse, and not been esse, only of a Will or Testament. Let us now see, First, by what words an Executor may be made. Secondly, De modo, In what manner it may be done. How the power and authority of Executors may be limited or divided. As to the first, though one do not expressly by Will, name or appoint any to be Executor: Yet if by any words or circumlocution, he recommend or commit to one or more, the charge and office which pertains to an Executor, it amounts to as much as the ordaining or constituting of him or them to be Executors. As if he declare by his Will, that A. B. shall have his goods after his death to pay his debts, If A be made Executor, and to him and D. some goods be divi●ed to dispose for his soul, D. is by this an Executor for these. and otherwise to dispose at his pleasure, or to that effect. By this is A. B. made Executor, as was conceived by the Judges, in the late Queen's time. And long before that, 39 H. 6. 27. b. ●8. M. 15. & 16. Eli. 21, H. 6. 6. 7. was it held, that if one do only Will that A. B. shall have the Administration of his goods, he is thereby made Executor. Yea, in the said late Queen's time, one giving divers Legacies, and then appointing that his debts; and Legacies being paid, his wife should have the residue of his goods; so that she put in security for the performance of his Will. By this without more, was she an Executor, as was held by three Iust. viz. Manwood, Harper, and Mounson, in the Lord Dyers absence. And so also where an Infant was made Executor, and A. and B. Overseers, with this, that they should have the rule and disposition of his goods and payment, and receipt of debts, until the full age of the Infant; by this were they held to be Executors in the mean time. And if A. be made Executor, and the Testator after in his Will, expresseth that B. shall Administer also with him, and in aid of him: Here B. is an Executor as well as A. and if A. refuse, B. alone may prove the Will as Executor; notwithstanding it be only said, that he shall Administer with A. and in aid of him. Thus many ways, and by divers words of implication, and may be made Executor, although not expressly so named by the Will. But if A. be made Executor, and B. a Coadjutor, without more, He is not by this an Executor with A. as in King H. 6. his time was held, nor hath such Coadjutor, 21. H. 5. 6. 7. or an Overseer any power to Administer, or intermeddle otherwise, 21. H 6. 6. than to counsel, 34. Ed. 3. F. Exe. 121. 29. Ed. 3. 39 persuade, and advise; yet I think he may, and in conscience should so do; and if that will not prevail to rectify negligences, or miscarriages in Executors, he shall well perform the trust reposed in him, if he complain in the Spiritual Court, or Court of Conscience; and it is reason, as I think, that so doing upon just cause, his charges be borne out of the Testators state, or the Executors purse, who otherwise would not be reform. How an Executor, or his Executorship may be limited or qualified in special manner, different from the general. NOw let us see how this making of an Executor may be specially qualified. And first the time may be limited, when he shall begin to be Executor, and that, either certainly, or with some reference to contingency. Secondly, the creation may be conditional. Thirdly, it may be partial, or dividedly, and not entirely. As to the first, Vide Gresbroke and Foxe Ploughed. one may appoint lo. At. to be his Executor a year or more time after his death, A. and B. made Exec. but ought not to meddle during the life of A. and good. 32 H. 8● 〈◊〉. 115. and this is good. So also, if A. appoint B. his son to be his Executor when he shall come to his full age; and in the mean time he dieth Intestate. Again, one may make and appoint the Executors of A. to he be his Executors; and than if he die before, A. is Intestate, until A. die. This creation may also be conditional, and the condition may either be precedent or subsequent. In the time of King H. 6. one named A. and B. his Executors; 3. H. 6. fo. 6. and if they would not take it upon them, than C. and D. should be his Executors: and then there A and B. refused; and the question was, whether in suit against the debtors of the Testator, A. and B. should join with C. and D. as where four Executors being named, and two refuse, and the other two prove the Will, yet all four must be named in suits against the Testators debtors, as was there admitted. But in the principal case it was resolved that the suit should be only in the name of C. and D. for that the appointing of them to be Executors, if A. and B. refused did imply, that then they only should be Executors. And here all four were never made, nor intended to be Executors, but A. and B. upon a condition subsequent that they should not refuse: and C. & D. upon a condition precedent, viz. if A. & B. did refuse. It is usual to make one or more Executors, conditionally, that they put in security to pay Legacies, or in general to perform the Will; nor was it ever doubted, as I think, but that this was good: yet I should advise, that such condition be plainly thus expressed, viz. either thus; that if I. S. do put in security, etc. by such a day, that then he shall be Executor, else not: or thus, viz. to make him Executor conditionally; that before he do Administer (Funeral perhaps excepted) he shall put in such security; else perhaps he being Executor till the Condition broken, in that mean time may have disposed of all, or most part of the Testators estate. In the late Queen's time, there was a Case remarkable to this purpose: One Willed, P. 33, Eli. Alce Francis her case. that if his wife suffered I. S. to enjoy Blackeacre (being belike part of her Jointure) for three years, than she should be his Executor, or else A. B. should; and the question was in the Common Pleas, whether presently before th'end of the three years, she were Executor, or not till she suffered the Land to be enjoyed three years: and it was held by all the Judges, but the Lord Anderson, that she was presently Executor, until she should disturb I. S. etc. for upon that done; it was agreed, that the Executorship, would, by virtue of the Condition be transferred from the wife to A. B. But now during these three years might she have disposed of all the goods of her husband; yea, within one of these three years, and less time, and then have broken the Condition, and have left to A. B. a dry Executorship. Now to the third Point, one may divide his Executors power three ways, 19 H. 8. 3●▪ viz. Really, Locally, 19 H. 8. Dye●. 4. Hill. 33. Eliz. in Com. b. or Temporally: Really thus. He may make A. his Executor for his plate and householdstuff: B. for his sheep, and cattle, C. for his Leases and states by extent, D. for his debts due to him, and so divide the power and Administration of his Executors at his pleasure. 32. H. 8. Br● 115 He may divide them also, or their power Locally, viz. A. for his goods in Com. Buck. B. for those in Com. Oxon. and C. for those in Com. Berk. He may also divide them in time; viz. his wife, or any other person to be Executor during her life, or during the minority of his son, or so long as she continues widow, and after his son to be Executor. So of like limitations, or divisions, either for time, place, or things, wherewith they shall intermeddle. Nay, doubtless one may be made Executor for one particular thing only, as touching such a Statute, or Bond, and no more; and thereof good use may be made, as I think, thus. Many have Bonds, Statutes, and Recognizances, for warranty or enjoying of Land, or freeing, or saving harmless from encumbrances in general or particular: Now he which hath these, selling the Land, may by Letter of Attorney lawfully assign them to the party who buyeth the Land or Lease; but this notwithstanding, the interest remains in him who selleth, and by his outlawry, they may be forfeited or by him released any Bond to the contrary notwithstanding; and if he die, the interest in Law will be in, and go to his Executors, and in their names; only Suit or Execution may be had and maintained. Qu●e. If not Assets in Law when obtained. Now then, if the Vendor, besides assignment make as to this Statute, Recognizance, or Obligation, only the Vendee Executor; By this, the interest, after death of the party, will be in him actually and really to his more safety, since none but he can release or discharge, nor any other name need to be used to sue, or take benefit thereof. But Quaest. If the Vendee, his Heirs and Assigns may be made Executors, so as that security, shall go to them one after another without renewed, making of Executors. Thus if the party make no other Executor, he dieth Intestate, as to the rest of his estate, and as to this specialty only, shall have an Executor, and must have a Will proved: and incase he do make another Will for his state residue; there must be two Wills proved. But in th'other case where by one only Will, one is Executor for one part of the estate, and another for another; there being but one Will to be proved, one proving of it sufficeth. And though in the premises of a Will two be made Executors jointly and equally; yet there may be a Proviso, 32. H. 8. Br●. Exec. 155. that one shall not meddle during th'others life, so as they shall be Executors successively, and not jointly; and thus also to other purposes aforesaid, a subsequent cause or Proviso, may make the partition and division of authority. But if the Proviso or clause subsequent, be merely contrary to the Premises, it will be void; as where two were made Executors, 19 H. 8, Dy. 3. ●. with a Proviso, or cause, that one of them should not Administer his goods. This was held void for repugnancy by Brudnell and Englefield Justices. But Fitzherbert Justice was of mind, that it was not void, nor utterly repugnant. For the other might join in suits, though not Administer; and Justice Shelley was of a third opinion different from all the rest, viz. that here was a repugnancy; but the last clause should control the Premises, and so this one only should be Executor. Who may make an Executor. SOme persons may be unable to make Wills, and consequently Executors; for that is all one: whosoever may make a Will, may make an Executor, and he that may make an Executor may make a Will. There be nineteen several kinds of persons unable, as the Canonests say, to make Wills, but with many of them we will not intermeddle, because we find no mention of them in our Law. The persons principally, and most usefully to be considered of by us, are either the defective in understanding, as Infants, Idiots, Lunatics, and the like, or defective in power or interest, as women covert or married; persons outlawed, attainted, convict, or excommunicate. Some touch we will give of others, as Aliens, Corporations, Villains, Monks and Friars. As for Infants and women covert, because much is to be said of each of them and their Administrations, we will forbear to treat of them in this place; but after will do it of each severally. To begin with an Idiot, naturally he is not able to make a Will, ●. Eli. ●. 203. 204. as was resolved in the Spiritual Court, because he wants the use of Reason to conceive what it is fit for him to Will; nor doth the Common Law oppose this as I think. A Lunatic having Lucida intervalla, that is, some seasons of enjoying his right mind and freedom from his Lunacy, may in those times of his right mind make a Will, and Executors, else not, for even one by age or sickness become of non sanae memoria, is unable to dispose of Lands or goods. One deaf and dumb borne may make a Grant, Vide plat la Perk. 5. 6. 33. H. 8. Dy. 55. 56. Vide 26. Ed. 3. 63. lib. 〈◊〉. 396. saith Master Perk. if he have understanding, which is hard, as he confesseth, consequently much more a Will: but in the time of K. Hen. 8. it is left a demurrer, 18. Ed. 3. 53. 26. Ed. 3. 63. So in effect. 44. Ass. p. 36. P. 31, Eli. Pascatia de Fountain's Case. whether a Deed by such, be good or not. If but mute, he may wage his Law, and atturne by signs, and so perhaps by signs declare his Will. 44. Ass. p. 36. An Alien may make, or be an Executor, so as he be not an Alien enemy, for such cannot sue; as in the late Queen's time was held; but there the doubt was, whether a subject of Spain were at that time to be held an enemy, no war being proclaimed between the Kingdoms, though hostility exercised. As for persons Attainted, Convicted, or Outlawed, it will be said, that these can have no goods of their own, and consequently, they can make no Wills nor Executors; and it is not to be denied, that we find it pleaded sometimes by Executors, that their Testators stood outlawed. But first it is clear, that all and every of these, may have goods as Executors to others, which neither are forfeited by Attainder or outlawry, nor devested by marriage, or Villeinage. Therefore as touching them, they may make Testaments. And that all these sorts of persons may be Executors, is also evident. So also touching Villains, Monks and Friars, who can have no goods to their own uses. And that one attainted of felony may have an Executor, 33 Eliz. in Ba●eg. appears by the Case in the late Queen's time, wherein it was long debated, whether such an Executor might maintain a writ of Error, or not to reverse the attainder of the Testator: And as for other Outlawries, the Plea thereof by the Executors, that their Testator was, and died outlawed, proves not a nullity of the Will, or Executorship: for than they might have pleaded, that they were never Executors. But it tends to this, that no goods did, or could come to them for satisfaction of the debts by reason of out-lawry; yet it hath been delivered, not of old only in many Books, but by some of late, that debts upon contract, where the defendant may wage his Law, 2●. Ass. P. 63. 49 Ed. 3. 5. 50. Ass. P. 15. are not forfeit by out-lawry, 33. H. 6. 27. 9 Eliz. D. 262. Contra. Co. lib. 4. fol. 95. nor uncertain damages for trespass in battery, or false imprisonment, etc. Quaer. Of breach of Covenant. But goods taken away by a trespasser, 19 H. 6 47. 30. Ed. 3. 4. 16. Ed. 4. 7. 5. Ed. 3. 53. 6. H. 7. may yet be forfeited by the Attainder or outlawrie of him from whom they were taken, for that the property in right still appertained to him, and he might have taken them again, wheresoever he found them, therefore the action for this shall not come to his Executor, but for th' other, not forfeited it may. Whether an Excommunicated person be able to make a Will or not, 〈◊〉. H. 7. fo●. 7 may be some doubt since Keble denieth him ability to present to a Church, Summ. Silvest. tit. Testam. and in the very Point anciently the opinion of Canonists hath been Negative, but more lately grew Affirmative. Who may be Executors; 42. E. 31. ●. more, AN Excommunicate person cannot Sue, that is, proceed in Suit as Executor till he be absolved, there being danger of Excommunication to all that converse with him; but this makes not a nullity of his Executorship, nor over throws the Suit, but stays it only from proceeding until absolution. 21. H. 6. 30. A Clerk attaint may be an Executor by Past. Just. As for persons attainted or outlawed, we have before spoken Affirmatively in way of proof, that they may make Executors for continuation of the Executorship, Pascati● de Fountain. But an Alien enemy cannot sue as Executor. P. 31. Eli. 3. jac. cap. 5. So of Aliens, and others before. Recusants convicted at the time of the death of any Testator are disabled to be his Executors. Whether Corporations, Compound, or consisting of divers persons may be made Executors or not; I doubt. First, because they cannot be Feoffees in trust to others use; secondly, they are a body framed for a special purpose; thirdly they cannot come to prove a Will, or at least to take an oath as others do. What a man may give or dispose by his Will. HAving considered of the makers of executors by Will, and of them so made. Let us now consider what by this Will may be disposed, given, Bransby. Verse. Grantham. Ple●. Com. f. 5 25. or bequeathed. And first, he, who himself is an Executor, cannot by his Will, give, or bequeath to any other the goods, chattels, or credits, he hath as Executor, the property not being altered, for that he hath not them properly as his own, or to his own use: only he may make a continuation of the Executorship, and his Executor shall have them as Executor to the first Testator, as was resolved by the Judges of both Benches, Hill. 20. Eliz. in the late Queen's time. And if he be Administrator, the bequest is then also void, nor then will they go to his Executor, but to a new Administrator; but on his deathbed he may give them by Word or Deed, At any time in his life he may alter the property. though not by Will. Next if a man have debts owing to him, as many have much, it is considerable, whether by way of bequest in his Will, he can give away these to any from his Executors. So 48. E. 3. f. 14. 15. And doubtless he cannot effectually in Law, Where the bequest was to one of the Executors, it was held that the other Executor might release it. they being not subject to assignment unto any except the King. So as, if he give such a debt to A. and such to B. yet must the suit for them be in the name of the Executor, and so also the Release or Acquittance for them: and not in their names to whom the bequests is. But when they be received, if there be no debts to pay, If sufficient otherwise to pay all one, a● if 〈◊〉. the Executor ought to deliver them to the party, to whom the bequest is, 48. E. 3. p. 14. 15. 11. Ed. 3. Fitz. tit. Conned. 9 and therefore may be compelled in Court of Conscience, or in the Spiritual Court. Therefore the Case of the bequeathing money payable upon a Mortgage, is in this manner, to be understood to be good, and not otherwise as I take it. Where both stated jointly by one Grant. He that is jointly with any other estated in Lands or goods, Differences betweent joint-tenants & Tenants in Common, holding by several Grants. can give no part by his Will, but all will survive, but by Act in his life he may dispose of his part, and the Assignee may dispose of his moiety by Will; Another kind of Tenants in Common. yea though it be half an Horse or Ox, that cannot be divided. So of a Lease of Lands, or Tithes, or Grant of goods to two, habendum, one moiety to the one, and the other moiety to th'other; each may give his moiety by Will. But if one be possessed, or estated for years by Lease, Wardship, or Extent, etc. in the right of his wife, or have the next avoidance of a Church in her right, he cannot by Will give or bequeath any of these; but notwithstanding they will remain unto his wife upon his death; but yet his Gift, or Grant of them, taking effect in his life time, would bind his wife, and carry away the interest from her. If one be Tenant for the lives of one or more; others, as oft times men take Leases for lives of younger persons than themselves, this cannot be by Will disposed of, for that it is no chattel, nor is it within the Statutes of Wills, for that it is no state of inheritance. Therefore let the party look to convey it in his life time, lest it go to an Occupant, viz. him who first shall enter: If it be a State in Land, he must either make Livery, have a bargain and sale enrolled or covenanted to stand seized to the use of his wife, or some of his blood, or make a Lease for years, determinable upon those lives: Good it be by bargain and sale for years, if the thing be in Lease, that so without Enrolment or Atturnment the Rent may pass, else a bargain and sale may be made for a month, or such like time; and then a Release or Grant of the reversion, in stead of Levery & Seisin. But if a man have a Lease for never so many years, determinable upon life, or lives; that is, if such or such live so long (which unskilled persons call a Lease for lives) this State may well enough be given, and disposed by Will, because it is but a chattel. If a man seized in Fee, or in Tail of Land having Corn growing upon it, and by his Will do give the Corn, and die before severance; this is a good bequest, because the Corn should have gone to the Executor. So it is also of a Parson touching his Glebe, and a man seized in the right of his wife, or his own right, but for life. Stat. Mert●n. cap. 2. vidua possint Lega●e tam de dotibus quam de aliis, etc. But as for trees growing upon the ground; these can no otherwise be given by Will, then as the Land itself upon which they grow, Qu●. If the trees may be devised by the Statute of Wills, without giving the Land itself. may be given of, which matter, as not pertaining to the Office of Executors, viz. How, and in what manner Lands may be given by Will, I intend not to treat in these discourses. Of the Revocation and Countermand of Wills and new Publication. HAving considered of the making of Wills and Executors. Let us before we come to the Probat, consider of Revocation, for that may take away the force of a Will rightly made. Omne testamentum morte consuramatur. A Will therefore having two parts, viz. Inception, which is the making, and Consummation which is the death of the Testator or maker of the Will, See the pleading of it by making a later Will. lib. Intra fo. 323. b. & 641▪ a. there is power in him at any time before death, to revoke or alter his Will at his pleasure. Consider we therefore of Revocations, and also of new Publications, or Reaffirmance of Wills in whole or in part. As therefore a Will may be made by Word. So also may a Will made in Writing be by Word revoked or disannulled: for since every making of a later Will is a Countermand, and suppression of the former Will, and since a Will may be made Nuncupatively or by Word, and so by making a verbal Will, one may revoke a Written Will. It will thereupon follow that one by Word may express the alteration of his mind, thus far that the Will by him formerly made, shall not stand, but be revoked and annulled; and this will stand and be effectual, so as if he after die without making any new Will, or new Publication, or Reaffirmance of the former, he dyeth intestate or without will. As a Will may be wholly revoked, so also in part: Hereabout a good resolution was in a Kentish Case, where one Ryetes by his Will in writing did give some Gavelkinde Land, to one Harrison, and five days before his death, said in the presence of witnesses, that this gift should not stand, and that he would alter it when he came home, desiring them to bear witness of his Revocation. Now before he came home he was killed by the said Harrison, who caused the Will in writing to be proved, and after he was attainted and hanged for the murder, and his Son by the Custom of Kent, (viz. the Father to the bough, and the Son to the plough) entered into the Land, ●. 4. Eliz. Dy. 310 b. and this manner of Revocation, by word only was held sufficient, although the Will in writing were not canceled nor defaced. M. 28. & 29. Eliz. Co, lib. 4, f. 60. And the like resolution for verbal Revocations is employed in the Case of Forse and Hembling, where it being resolved that a Feme Covert, or married woman, by word Countermanding and Revoking her Will formerly made, when she was a sole or unmarried Woman: this was not effectual, nor of force, by reason of her Coverture, taking away the freedom of her Will, hereby it is employed that another who hath freedom of Will may by Word sufficiently revoke a Will in writing; and so was it since also admitted in the Case between Sir Edward Montague and jeoffryes, 7. H. 6. fol. 13. M. 38. 39 Eliz. touching the Will of Sir Io. jeoffryes, but there a difference was conceived betwixt saying, I will revoke my Will, which only expressed a purpose or intent, & therefore was no present Revocation; and saying I do revoke it, or it shall not stand, or my heir shall have my Land, which crossed the gift of it by the Will. And as Wills may be wholly or in part revoked so may also the executorship of one or more of the Executors, and yet the Will may stand in all the other parts, so as there be any one Executor or more unrevoked: but if all be revoked, than the whole Will is revoked, because no Will can stand without Executors: and this Revocation may be by Word only, without being expressed in the Will or any other writing. But I would wish all to express such revocation in the foot of the Will, or that the name or names of the Executor or Executors so revoked be expunged or blotted out of the Will, and that this be done in the presence of some witnesses to testify the act and intent of the Testator. Again, Revocations may be by act in Law as well as in fact, or by direct and express terms, as in the said Case of Montague and jeoffryes, where Land being devised by Will, and the Devisor after making a feoffement, though there were some defect in the Livery, Vide 6. F. 6. Dy. 74▪ & 3, & 47. & Ma. 43, a. to make it effectual, or if he made a bargain and sale, that was never enrolled or granted the reversion, but no atturnment had, so as the Land passed not, yet in all these Cases the Will or gift of Land stood revoked: But in Case he had only Covenanted that he would have made such an estate, and not done it, this was held to be no Revocation. And so by some, in case he do but make a Lease, leaving the Fee simple, as it was, but of this Quare; And if a difference may not be betwixt making a Lease for years, and a Lease for life, which altereth the Freehold. If a Lease for twenty years be bequeathed to I. S. and after the Testator, maketh a Lease for fifteen years, reserving a Rent, I take this to be no Revocation of the bequest; but if the Testator after this Will made, take a new Lease for a longer term, so as the former Lease is surrendered in fact or in Law, this must needs be a Revocation of the bequest, or at least an adnullation thereof. and that although the bequest: were generally of his Lease, not mentioning the number of years; for this which he now hath, is another Lease, and not that which he had at the time of the making of the Will. So, if one give his black gelding by Will, and after, before his death, he selleth or giveth away that Horse, and buyeth another black one, this new gotten Horse shall not pass by the Will, because it was not the Testators, at the time of making his Will. So also, if the Crop in the Barn be bequeathed in October, and the party lives till that time twelve month, having sold that Crop and Inned a new, this later Crop shall not pass by the Will, and the former cannot. Again, as revocation may be by alteration of the State of the Devisor, in the Land Devised; so may it also be by alteration, in some case of the state or quality of the person of the Devisor. As if a woman sole make a Will, and after take a Husband, this without any more, as is resolved in the said case of Forse, and Hembling, doth work a Revocation, or adnullation of the Will, for that else it should be irrevocable, since she having lost the freedom of her Will, cannot actually and directly make a Revocation, as we before have showed. But notwithstanding her Will be revoked, yet in case her Husband before or after marriage, with her were bound or Covenanted, to perform this woman's Will, if he so do not, by payment of the legacies therein bequeathed, his Bond or Covenant stand good, and be suitable against him, M. 25. 26. Eliz. as was adjudged touching the Will of Elizabeth Smaleman, married after her Will made to one Wood Who first was bound to perform it: yet another case there is of Alteration in the state of the Testators person, which makes no Revocation of his Will. As if he being of sound mind and ability, make a Will, and after becometh frantic. In this case this is no Revoction. So as his Will stands till his death irrevocable, if he recover not. Now of a Will Revoked, there may be a reviver by a new Publication, and thereof now. Of new Publications. HAving showed how a Will may be revoked, and so lose its force; let us now see how without making a new Will, that so revoked may be revived, M. 38. 39, Eliz. in ba. reg▪ and set on foot again. And that is divers ways: as, First, by a Codicell annexed after thereunto, as was resolved between Betford, and Barnecot, in the King's Bench. Secondly, by adding any thing to the Will, or making a new Executor, etc. Thirdly, by express speech or word, that it should stand or be his Will; as I conceive, to have been the better opinion in the said case of Montague and jeoffryes, wherein yet was much difference of opinion, both touching Revocation and new Publication. If a man having made a former Will, 44. Ass. p. 36▪ do make a latter which is more than a bare Revocation; yet if afterward lying upon his deathbed, and speechless, both these Wills be delivered into his hand, and he required to deliver to one of his friends about him, that Will which he would have to stand, and to keep in his hands th'other; he thereupon delivereth to the Minister or other his neighbours, the first made Will, retaining in his hands the latter, as was done in the time of Edward the third. Here the former Will, 44, Ed. 3. ●ols 33. though made void many years before, by the latter, is revived, and shall stand as the Parties Will. But now put the case that a Bequest at the first is void, yet by Publication after, it may be made good, as if one give to Sar. his wife, a piece of Plate or other thing, and hath no such Wife at the time, but after marryeth one of that name, and then publisheth his Will again; now this shall be a good Bequest. So if one Devise Lands or Goods, which one hath not; If he after do purchase the same, and then say that his Will before made shall stand, or be his Will. It shall be a good Will and Bequest, for this is in effect a new making. 3. &. 4. P. M. Dy. 143. And though most of the precedent cases, be of Revocation of particular parts of the Will, and not of the total: Yet first, be it considered that, that part so revoked was in effect the substance of the Will: Next, it is easily discerned that if one part be revocable, so is another also; And thus Revocation may spread itself over the whole; nay, doubtless the whole, Vno flatu, may be revoked, as well as by parts, even as a faggot may be put wholly into the fire, as well as stick by stick. And as the Velleities or disposing parts of the Will, are revocable and revivable by new Publication as aforesaid, so is also the constitution of Executors. As if one of the Executors names be stricken out, and afterwards a stet. be written over his head by the Testator, or by his appointment, now is he a revived Executor. So if the Testator express by word, in the presence of Witnesses that the party put out shall yet be Executor; but now I mean, where the Executors name is not so blotted out, but that it may be read and discerned; for else the stet is upon nothing, and if the Verbal reaffirmance should renew his Executorship, then must the Will be partly in writing, and partly Nuncupative, his name not being to be found in the written Will. Of the State of things instantly upon the Testators Death, before any Will proved. Here we will consider these several things. 1. What is wrought by a gift of a thing certain and known, as the White Horse, the Red Cow, etc. 2. What by a Bequest to an Executor. 3. What wrought by a Release in the Will, to a Debtor. 4. What by making a Debtor, or Creditor, an Executor. AS touching the first, viz. the bequest of a Chattel real, or personal, which the Testator had in possession, notwithstanding that, if the said Testator had by his Deed or writing, or but by word in his deathbed, or before given these his goods, 1 & 2. P. & Ma. Dy. 110. a. & 139. b. vide Co. ●. f. 95, & 96. and died before they had been taken, he to whom they so were given, might have taken them; yet in this case of gift by Will, neither can the Legatee, viz. he to whom they are bequeathed, either take them, or recover them from the Executor, or a stranger taking them; by any Suit at the Law for that he hath no property in them; Of the second. See Co. 10. f. 47. 65 ●. yea if the Bequest be to himself, So resolved pass. T●●. 37. Eli in b. a. M. onely ●aw. ●●ntr. Portman. pl. & Simes de●●. who is made Executor, be it of Lease, Plate, Cattell, etc. They shall not vest nor settle in him as Legate, but as Executor, until express, or employed election, See more of this Tit. Legacy: and of the assent of one Executor only. but made to have and take the same by way of Legacy. And the reason in both case is this, viz. That the Law prefers, debts, and the satisfaction of them before Legacies, and ties Executors also to that rule, and therefore will transfer nothing from or out of the Executor, till he having considered of the State of the debts to be paid, and goods out of which the same are to be paid, shall find that safely this or that legacy may take effect without making any defect in payment of debts, or drawing upon him and his own goods any damage or loss as a waster: and thereupon shall assent to such Legacy. Thus now is the Law taken; but heretofore some opinion hath run otherwise, viz. That he to whom any Bequest was made of a thing known and certain, 27. H. 6. 8. might take it without any assent of the Executor: Of late perhaps some single or sudden opinions may also have run that way, but in Portmans' case the point was divers ●unes argued, and then adjudged as before. and that when to the Executor himself any good or Chattel movable or immovable was bequeathed. In case there were otherwise sufficient goods, for satisfaction of debts, the same should instantly upon the Testators death, without any act or election, by the Executor be transferred into, and unto him in his own right, as a Legacy, and not remain in him as Executor. As for sums of money bequeathed, To be bought. or so much in Plate, or Rings, it is evident that they must be had by the delivery of the Executor: Yet hath the Legate such an interest before delivery, as that dying before payment it will go to his Executors. But as I take it, no such to whom any thing certain is given by Will, can make any gift or grant of it, before the Executor have assented to his having thereof; Quae. of this see more after Tit. Legacy, thereabout. Nor perhaps will the Executors assent, after the grant have such relation, as to make good the grant precedent; why so, yet? more than an atturnment of a Leassee, which is alike assent to the grant of another? And Quere if by the out-lawry of the Legatee, before the Executors assent, this thing bequeathed be forfeited. If without just cause an Executor will refuse to assent he is compellable by Law Spiritual or Court of Conscience, yet if Spiritual Court press to do where is just cause to stay, a Prohibit. lieth, ut Credo, for since executors stand liable to recovery of debts against them by Common Law. It is reason that Law enable them to keep wherewith to pay. And here yet note some seeming opposition in Law for where before great difference was showed between a Devise or Bequest, and a gift or alienation executed in one's life time; Yet the Lord Deyar reports it to be resolved, that where a Lease for years was made upon condition, that the Lessee should not Alien in his life time, that yet a Bequest of this Lease by his Will, was a breach of the Condition as being an alienation in his life time. 3. Of a discharge by Will to a debtor some question may be whether to perfect and make good this, so as the debtor may plead it in Bar, there be not requisite, as in the former, an assent of the Executor. On the one side, since this giving is a forgiving, for he to whom it is bequeathed, cannot otherwise have it, then by way of retainer, it may probably be said, that here needs no such assent of the Executors, as in the case where any thing is to be transferred; for here is rather an extinguishment, and an exoneration than a passage of a Chattel by way of Donation: On the other side it is probable that it being but a Bequest, and so a Legacy, since debts are in Law and Conscience, to be satisfied before any Legacies, that therefore the Executor having not sufficient otherwise to satisfy his Testators debts, may sue for this debt, and refuse to suffer it to pass away as a Legacy. And to this opinion do I incline, as best for Creditors; and satisfaction of debts is by Law respected as an act greatly concerning the Testators soul. But some will perhaps make a contrary doubt, that although there be an assent of the Executors to this discharge, yet it will not amount to a legal release, for that a debt, at least, Not de esse, but de bene esse. if it be by speciallty, cannot be released but by Deed, and a Will is no Deed, for a Seal is not necessary thereunto, though it be fit and convenient; whereto I give this answer, that a Will though it be not properly and legally a Deed, for it may be good enough without a Seal, which is an essential part of a Deed, yet hath it the force and effect of a Deed: for as a Release cannot be made but by Deed, so neither can an Estate or Interest though but for years in Tithes, Advowsons', Commons, Fairs, and like things be granted or assigned otherwise then by Deed, yet it is clear, that such a state for years in any of these may be given by Will, as well as a Lease of Land, which proves a will to have the force and effect of a Deed. Of making a Debtor or Creditor, Executor, and first of the Debtor made Executor. SUppose we then that A. and B. being made Executors, the Testator was indebted to A. twenty pounds, and B. was indebted to the Testator twenty pounds, how do things stand presently upon death. 21. H. 7. 31. Blow. Com. 185. cont. Danby & Choke. 8. E. 4. 3. And may be granted that he should account before the Ordinary for it. First, it is clear, that the debt of B. to the Testator stands in Law extinct, this making of him Executor, being a Release in Law. Therefore let Debtees, take heed of making their debtors Executors: And yet doubtless me thinks suh a debtor made Executor should hold himself restrained in Conscience, from taking benefit thereof, Yea it seems Ploughed. 186. a. the Law was taken to be as supra. 8. E. 4. if (the debt remitted) there shall want to satisfy either debt or Legacy of the Testator: and I doubt whether a Court of Conscience may not justly so order; the Testator, being perhaps ignorant of this point in Law, that this debt should be released by making the Debtor Executor. Though he never administer. 21. E. 4. 3. 81. 11 H. 6. 38. And what is spoken of making the debtor Executor, generally the same is to be understood of making any one of the debtor's Executor, 2. R. 3● 20. par Starkey & 22. per Vavaser. where there be many joint debtors: and so also where many Executors be made, and but one of them is debtor to the Testator, for they cannot sue without making him who is the debtor, also a plaintiff, 9 H. 5. 13. Left a demurrer in trespass by all, against the Executor, who was trespassor. which he cannot do against himself. The like Law touching Actions of trespass or account: Yet of old, where one made his Bayley one of his Executors, together with A. and B. who brought an action of Account against the Bayley, in their two names only; Justice Herle held the action well brought: 3. E. 3. 23. This was in the beginning of King Edward the third his time; but the contrary hath been since resolved, 6. N. 4. 3. 8. E. 4. 3. Choke. some also have held, that though in the life of this Executor, who was a debtor, 21. H. 7. 31. 20. E. 4. 17. he could not be Sued, yet after his death, the surviving Executors might sue his Executor: 21. E. 4. 3. 61. Ploughed. come. 36▪ but that cannot be, as I take it, for that the debt was utterly extinct, by the making of him Executor; as if the Testator had released it to him, Ploughed. come. 185. yea, though this Executor died before he did ever Administer or prove the Will. And like extinguishment of the debt, 11. H. 4. f. 83. 84. if the Creditor marry with one of the Executors of the debtor, yet was there an Action of debt maintained temp. Edward 3. By the Husband and Wife, 31. E, 3. Fitz. Ex. 82▪ against the Husband, and other Executors upon an Obligation by the Testator to the Wife, before her marriage. But if a debtor take Administration of the goods of his Creditor, this me thinks should not discharge him, but that his debt should stand as assetts in his hand because the intestate did no act to free him from the debt. The Debtor or Creditor made Executor. THis making of the Debtee Executor, and so the party who both should pay and be paid, the debt giveth him clearly power to pay himself before any other, if his debt be by Specialty or upon Record. Blow. co●. 185. By all the Judges, but Break Chief Just. Ploughed. 185. b. Where the goods be of more value, which shall be so altered? Nay, some have held that so much of the goods of the Testator shall be altered in property out of the Executor, as Executor, into him as Creditor, but how that can be, I cannot see: For whether shall it be satisfied out of the Lease and Chattels real, or personal, whether out of the Corn in the Barns, See Blow. come. 544. the like of a Legacy of twenty pound given to the Executor. cattle in the Fields, Plate or householdstuff; this till some election made by this Debtee Executor, cannot be known, nor shall be effected by any operation of Law, preventing the Executors election, in taking his satisfaction, where and how he will. For certainly, as an Executor hath election to pay, which Creditor he will first, so hath he election to pay and satisfy himself, Or if the goods amount in all to no more than this debt, by what part of the Testators goods he will, yet perhaps if there be ready money in the Executors hands, there shall be an alteration of the property of so much thereof as was owing by the Testator to the Executor. And if there come not to the hands of such Executor, See Blow. come. 185. 13. H. 8. 15. 11. H. 4. 83. 12. H. 4. 21. 20. E. 4. 17. 21. E. 4. 3. sufficient to pay himself, he may have an Action of debt against th'other Executor, or the Heir, as by some hath been conceived: yet let it be well advised of, whether, if he do Administer at all, and specially, if he pay himself any part, he have not thereby barred or disabled his Suit for the Residue. But if he refuse to Administer at all, Ploughed▪ 184. b. & 185. b. He is barred for he cannot appo●●● on his debt. it were very unreasonable that he should not be able to sue the other Executors, for so a Debtor might by subtlety make his Creditor an Executor with others, and take a course that his goods should come only into the hands of those others, so as the Debtor could not pay himself; and consequently, if he could not sue the other Executors, he should thus be stripped of his debt by a sleight. Quaere, if he may bring the action in the name of the other Executors, only the Will being proved in his name, as well as in the names of the rest, or whether the Action shall be brought in his name also, and then he be severed at his own prayer. But against the Heir there is none to join with him, 12. H. 4, 21. He may sue the Heir if the Heir bound, and he have not sufficient goods as Executor. and him may he sue, if he have not Administered as Executor; this admitted, that the Bond extend to the Heir, which without express words it doth not, though for the Executor it be otherwise. Thus having considered of the State of things before and without any Will proved or other act done by Executors: we should now come to the point of proof, but two things, pertinent to it, are in Order precedent. 1. What may be done by or to an Executor before proving of the Will. 2. Of Refusal, and the things incident thereunto. Before probate, what may be done by or to Executors. AS to this it is clear, that before proving of a Will by the Executor, he may seize and take into his hands any of the goods of the Testator, yea enter into the house of the Heir if not locked so to do, and to take the specialties of debts and generally he may do all things, 9 E. 4. f. 33. 47. 7. H. 4. 18. which to the Office of an Executor pertaineth (except only bringing of Actions and Prosecution of Suits.) They cannot sue till they have the Will under the seal of the Ordinary. He may pay debts receive debts, make acquittances and Releases of debts due to the Testator, and take Leases or acquittances of debts owing by the Testator: Yea, if before such proving, the day incur for payment, upon bond made by or to the Testator, payment must be made to or by this Executor, though no Will be proved upon like pain of forfeiture, as if the Will were proved. Also an Executor may before Probate, sell or give away any of the goods or Chattels of the Testator. And whereas the assent of an Executor, is necessary to the settling and Execution of a Legacy, as before hath been showed. So as if one give me his white Horse, or black Cow, by Will, or any other well known thing, I cannot after his death take it, Wr●y. 23. Eliz. though I come where it is, but am punishable by action of trespass, at the Executors suit, if he do not assent; yet an Executor before the Will proved, may give this assent, and it will stand good. Yea, although he die after any of these acts done, the Will being never proved by him, yet do these Acts so done, stand firm and good, as I take it. Yet (as I find) an Executor, making his Will, and dying before he had proved the Will of his Testator: his Executor may not prove both the Wills, and so become Executor to both the Testators. 22▪ & 23. Eliz. Dy. 372. But in case the goods were, after debts paid, bequeathed to the Executor, his Executor may take Administration of the first Testators goods, with the Will annexed, as by Doctor Drury, was in the late Queen's time declared to be the Law and course of the Court Spiritual, to which credit was given by the Judges of our Law, and the Court of Star-Chamber: for though the Book do not mention it to have been in Star-Chamber, it is elsewhere so reported: Yea an Executor, for goods of the Testator taken from him, Dy. in Blow come. 281. Case of Gr●●●brooke & Fox. or a trespass done upon the Lease Land, or a distraining, or Impounding of goods or cattle, may maintain before the Will be proved, Actions of Trespass, or replevin or detinue, for these Actions arise upon the Executors own possession. But before the proving of a Will, an Executor cannot maintain a suit or action of debt or the like. And the reason is, for that therein he must show forth the Will proved, under the seal of the Ordinary. And so, as I take it, must it be, if he bring any Action for trespass done, or goods taken in the Testators life time, so as the Testator himself was entitled to the Action, and it grows not upon the Executors possession. 34. P. & Ma. Die▪ 135. a. I find that an Executor granting the next avoidance of a Church which to him came from the Testator; the Grantee mainetained a Quare impedit, without showing forth the Will: Dy. in Blow. come. 281. a. But the Executor himself might so have done, as of his own possession before the Will proved, and so without showing it under the seal of the Spiritual Court, as well as Actions of Trespass, or Replevin, for goods taken after the death of the Testator: yet in the Principal case of Greysbrooke and Fox, which was an Action of Detinue by the Executor, for goods taken or detained after the Testators death, Blow. come. 275. b. the Plaintiff did show forth the Will proved. But that proves not any necessity thereof, or that if the Will had not been proved, it could be no hurt to show it forth, so upon his own contract for the Testators goods as if the Executor sell cattle or other goods of the Testator, before the Will proved, he may for the money payable, maintain an action of debt, before he have proved any Will: and in this and the action of Trespass, there is no necessity of naming him Executor. Also on th'other side, an Executor may well enough be sued for debts of the Testator, before the Will be proved; for he may not by his own Act of delaying the Probate of the Will, keep off Suits, except he will refuse in due manner, that so Administration being granted, there may be some body Suable by the Testators Creditors, for debts by him oweing. And the usual plea of the Defendant, to estrange himself from the Testament, is to say that he neither is Executor, nor hath Administered as Executor. So as if he either be Executor De jure, or De facto, by his own act of Administering it sufficeth. Of refusal to prove the Will, and therein of Administration, forecluding refusal. NOw touching this other point, fit to be thought of, before we meddle with the Probate, viz, Refusal to prove, we will thereabout consider these several parts, viz. First how, and in what manner refusal may or must be. Secondly, in what Cases, or in respect of what acts one named Executor hath lost or determined his election of refusal or acceptance. Thirdly, of what effect and operation the refusal is, what difference, where all the Executors refuse, and where but some or one of them. Fourthly, what relation it hath. Now touching the first; 3. Herald 7. 14. the Ordinary, before committing Administration where a Will is made, and Executors named, if he know of it, 9 Ed. 4. 47. must send out Process against the Executors, 3. Herald 7. 14. to come in and prove it, and if they do not come, Blow. come. 281. they are to be excommunicate; but if they do come, if they nor any of them will prove, by reason of such refusal, the Ordinary may commit Administration; perhaps also they may be appointed Executors at a time future, and not presently. Now refusal cannot be verbally, or by word, but it must be by some act entered or recorded in the Spiritual Court, 9 Ed. 4. 33. See Blow. 184. a. I● Dettee made Executor, sue the Ordinary for the debt; this amounts to a refusal of the Executorship. and therefore must be done before some Judge Spiritual, and not before Neighbours in the Country; for that is not effectual. Yet Sir Ralph Rowlett; making the Lord Keeper Bacon, Catlin, Chief Justice, and the Master of the Rolls, Executors, they wrote a Letter to the Ordinary, that they could not attend the Executorship, and therefore wished him to commit Administration, who did so; making every of their Refusal, and this was held good: So as a Lease being by that will bequeathed to Catlin, and he after this refusal entering and assigning it to one, and the Administrator, assigning it to another, it came in question between them whether had best right, M. 28 & 29. Eli. Inter Brooker & Carter. in Ba. come. and Judgement was given for the assignee of the Administrator against Catiline's assignee, whereas, if the Refusal had been void, Catlin had continued Executor, and so his title had been better. First, in case the Ordinary himself, 9 Ed. 4. 33. The Book calls him Cardinal of Canterbury. be made Executor, there saith the Book he may refuse before his Commissary, and so was it there pleaded for the Archbishop of Canterbury, who was made Executor to Sir William Oldhalle. What shall be such a meddling or Administering by an Executor that he cannot refuse after. AS to the second, 9 Ed. 4. 47. Selling Land as Executor is Admin. where an Executor hath Administered, he cannot▪ afterwards refuse, Dye● in Case of Greisbrooke & Foxe. Blow. come. 280. b. because he hath already accepted of the Executorship, and so determined his election: at least the Ordinary ought not to accept of such refusal, but should compel him to take upon him the Executorship, as the Law was taken both in the time of Ed. 4. and of Queen Elizabeth: Pas. 7. Eliz▪ Yet if the Ordinary do admit one to refuse, notwithstanding that he have Administered: this standeth good, as it seemeth, conceived by the Judges in the time of Hen. 6. 36. H●n. 6. f. 7. 8. for there the Executor commanded one to take goods of the Testator, out of the hands of I. S. who did accordingly; and afterward the Executor refused before the Ordinary, and Administration was committed to the said I. S. who brought an action of trespass against the party so taking the goods from him, and there the refusal and committing administration were admitted to be good: so perhaps Factum Valet quod fieri non debuit. And it well may be that the Ordinary did not know of the Executors, such intermeddling at the time when he did admit of his refusal. After Refusal and Administration committed, the Executor cannot go back to prove the Will, and assume the Executorship: but if only upon the Executors making default to come in upon Process, to prove the Will, the Administration be committed, here the Executor may yet at any time after come and prove the Will, Mic●. 27. 28. Eliz▪ and so undo the Administration: as was in the late Queen's time resolved, between Bale and Baxter. But what if after refusal, it shall appear to the Ordinary, that the Executor had administered before his refusal, so as had it been then known, the Ordinary should not have admitted him to refuse. Whether now may he revoke his administration, (for it is revokeable) and enforce the Executor to proceed to proving of the Will. And surely me thinks he may, for that the Executor by Administering, 〈◊〉 Case, in come▪ 〈…〉 A. being Executor did administer, and yet would not prove the Will. B. took Administration, and being sued for debt, did plead the matter supra, and held a good plea; and was found for him before ●ust. 〈◊〉 ad Oxen▪ in aestat. 1. Car●l. reg. had determined his election, and accepted the office of Executorship; now he cannot both except and refuse. Besides, we know that Creditors may maintain their Suits against him, having once Administered, the Common Plea to free himself, and show that he is not the party suable for the Testators debt, being that he neither is Executor, nor ever did Administer as Executor, wherefore he having administered, it will be found against him. Now it is not congruous, that in the Spiritual Court there should be no Executor, and yet in the Courts of Westminster there should be an Executor. But since this Point of Administering is so material to the Point of being admitted, or not admitted to refuse; we will here consider in this place, briefly, what shall be said to be an Administration by an Executor, 36. Hen. 6. 7. determining his election, and disabling his refusal, and what not. 1. Some will perhaps conceive, that the act of the Executor in the forementioned Case, where he only commanded I. S. to take goods of the Testators out of a stranger's hands, was no Administration: and it is true, that in that Book it is passed in silence, and not expressly said to be an Administration. But the Lord Dyer in the Case of Gr●isbrooke, and Fox, speaking of that Case, saith expressly, that the Ordinary might there have rejected the Executors refusal; for saith he, when the Executor had once intermeddled; he should not have been suffered to refuse; so as he doth clearly admit that to have been an Administration. 20 〈◊〉 4▪ 17. and 21. ●. 4▪ 5. And else where it is held, that if an Executor take goods of the Testator, and convert them to his own use; this is an Administration; yea, if he do but take them into his hands, say some, without converting of them: If the wife take more apparel of her own than is necessary, 21. Ed. 4. 5. this is an Administration, 21. H. 6. 19 20. as the Book admits; but if by the assent, 33. H. 6. 31. 8. or delivery of the Executor, it is not. More clearly, If one do either pay debts of the Testator, 1. Eliz. Dy. 166. or receive debts, 13. Ed. 3. Ex●c. 91. or make acquittances for them, 3. 4. Ma. Dy. 135▪ or demand the Testators debts as Executor; 26. H. 8. 7. 8. or give away goods which were the Testators, 20. H. 7. Kelw. 63. or deliver money of the Testators for Fees about proving the Will: all these be full and clear Administrations as Executor. 21. Ed. 4. 5. But saith F●tzherb. if he only lay out his own money for Fees, 20. H▪ 7▪ f. 5. a. this is no Administration, so saith Fr●wicke, if he pay debts with his own money; and if he do it about the Funerals. But some difference may be between Acts done by one, named Executor, and by a stranger, viz. to make him an Executor of his own wrong, whereof we shall speak after, not in this place. 9 Ed. 4. 12. 13. If one being sued as Executor, 33. H. 6. 31. 4. take it upon him, and plead in Bar as an Executor, this is an Administration. Of the force and effect of refusal. AS to the third Point, viz. the force or effect of Refusal. First, it is clear, that if there be but one Executor, and he do refuse, or being many, if they do all refuse, then is the party dead Intestate, and Administration is to be committed with the Will annexed, as is before said; nor can any after meddle as Executors. But in case there be divers Executors, viz. A. B and C. and A. only refuseth, and the Will is proved by the others, there A. continueth an Executor, notwithstanding his refusal, Cook, lib▪ 5. f. 2●. so as he still may release debts of the Testator; Cont. 18. E. 2. Bre. 8●7. and debts owing by the Testator may be released to him; yea if Suit be to be had, 22. Ed. 3. 19 by, or against the Executors, 15. Ed. 3. Exec. 8. it shall not be in the name of B. and C. only; 41. Ed. 3. fol. 〈◊〉. but A. also must be named as a Plaintiff, 21. Ed. 4. f●l. 24. or Defendant, else the Action may be overthrown. For the Will being proved, all the Executors therein named, stand and continue Executors; notwithstanding any of their refusal, as it was resolved in the later end of the late Queen's time, according to divers former resolutions. And therefore this Executor which hath refused, may afterwards Administer at his pleasure, and intermeddle with the goods, 42. Eliz. Co. 9 f. 36▪ 37. as well as the others: yet saith Brooke Chief Justice, after the death of his Companion, he cannot so do, but then the Executor of him who proved, 4 & 5. 〈◊〉. & Ma. Dy. ● 69● 〈…〉 2●. ●. ●. 4. 23. 24. is only to Administer, Quod non est L●x. There may be some difference between Suits by Executors, and Suits against Executors; for when themselves sue, they being privy to the Will, and having the Custody of it, must bring their Action in the name of all the Executors according to the Will; but he that is to bring an Action against them need not perhaps take notice of more Executors, than those that have proved the Will, or otherwise do Administer: for it is no good plea for themselves in an Action against them, to say there is another Executor, without saying also that he hath Administered, as it seemeth by divers Books. Nay one Book in the time of Henry 8. goeth further, viz. that if Suit be brought against all, yet one of them not intermeddling with the proving of the Will, may plead that he was never Executor, nor Administered as Executor. By this it should seem, 33. Hen▪ 6. 38. a. 〈◊〉. 9 37. 6. that Executors refusing (I mean all of them, 32. Hen. ●. ●25. so as no Will is proved) they in an Action against them, 27. Hen. 8. 11. 〈◊〉 cur●am. may say, that they were never Executors; but me thinks they should not so plead, but show the special matter, as was done in the time of Edward the Fourth. As for Relation, 9 Ed. 4. 33. Co. 9 fol. 36. I will forbear to speak, till I come to proving, for that Probate, and Refusal stand in the same state, as touching Relation. Of proving Wills. NOw let us see touching the Probate of Wills, what is considerable; and therein of these three or four parts; 1. Where, and before whom, and how the proof must be. 2. What shall be Bona notabilia, to entitle to Probate. 3. What force or validity, either a right, or erroneous Probate hath. 4. What relation either Probate or Refusal hath. As touching the first Point, viz. How, and where, and before whom Wills are to be proved, briefly thus; The proving is in the Spiritual Court: yet in some Manors by Prescription, Wills are to be proved before the Steward, though no Lands thereby pass, as appears by divers Books: and in the Manor of Maunsfield is this Prescription; 2. R. 3. Fitzh. 4. Co. lib. 9 fol. 43. and in others whereof Tremaile, was Steward in King Richard the third his time, as he declared, and the like. I may tell of my own knowledge, touching the Manors of Cowl●y and Cave●sham in the County of Oxford, where I have kept the Courts for the Lord Viscount Wallingford, and found it in present and frequent use. 11. H. 7. 12. And it is said by the Judges, in the time of King Henry 7. that this proving of Wills in the Court Spiritual, is not ancient but of later time. Yea it is acknowledged by Linwood the Dean of the Arches, that it pertains not to the Spiritual Court of Common right; nor is so in use in other Kingdoms. Flow. Co●. 279. The reason why the Law of England hath herein given way to the Ordinary, and Court Spiritual, is said by Walsh in Greisbrooke & Fox's Case, to be the piety and integrity which is presumed to be in those of that Function, having charge of souls. Indeed they are, as it seems to me, Executors of the New Testament; or last Will and Testament of jesus Christ; whereby great Legacies and Gifts are given to men, & by Pastors to be dispensed & distributed: of which distributers, it is required, as S. Paul saith, That they be found faithful. 1 Cor. 4. 2. And happy are they who with him can plead, Acts 20. 27. Plenè Administavit, viz. that they have fully Administered, as he did; much depending thereupon, viz. God's honour, the blessing, prosperity, & safety of the Country, the Piety, Justice, Conscience, Contentation and Salvation of men. As for Wills proved in London, and Oxford, before the Major, that is only in respect of the Burgages within those places devisable, but they were to be proved also before the Ordinaries, in respect of the goods, and there only where no Lands bequeathed. The proving then is to be before the Ordinary General, particular, or special. By General, I mean the Metropolitan or Archbishop, Vide ●ol. proxim. If Bona Notab●●● both in Canterb. and York. before whom it is to be proved; in case the Testator have goods valuable, called Bona notabilia in divers Dioceses, whereof he is Superior. Of Bona Notabilia. What shall be said to be Bona Notabilia is considerable, for there about hath been much diversity of opinion: Some holding, that they must be of forty shillings value; some five pound, some ten pound; yea some, that the value of a penny sufficeth to draw it to the Archbishop, from the particular Bishop. But that difference of opinion I conceive to be now cleared, Canon 92, 93. by a Canon made in the first year of his Majesty's Reign, at a Convocation then held, whereby it is established, that five pound shall be the sum, or value of Bona Notabilia; yet therein is this Proviso, that where by Composition or Custom in any Dioceses, Bona Notabilia are rated at any greater sum; the same shall continue not altered. It is likewise thereby provided, that if any man die in Itinere▪ viz. in his journey or travel, the goods which he then hath about him, shall not cause that Administration shall be committed, or the Will proved before the Metropolitan. Having considered of the value: now another Point observable, is, what things shall be said, to be Bona Notabilia. And as to that debts owing to the Testator, are Bona Notabilia, as well as goods in possession; their value being answerable; yet I think, if the Penal sum of the Bond be but five pound for payment of a less sum, although the Bond be forfeited; yet in the Spiritual Court, where respect to Conscience, suppresseth the favouring of Executors; this will not be taken to be Bona Notabilia, viz. of five pound value, although in Law, the whole penal sum be a duty. But if the debt be five pound or more, though it be desperate or due from the King, against whom no Suit can be, but only by petition; yet will this stand for, & as Bona Notabilia, as I take it in the Court Spiritual, though thereabout I can but conjecture since the Rules of our Law determine it not. And this Point touching the Kings being debtor, ●1 Eliz. I find debated in the late Queen's time, but not resolved, so far as I find, but there Popham at the bar urged, that no debt should be Bona Notabilia; and if it should, yet not such, for which no remedy by Suit, as in that Case, the Queen being debtor. Yet a further Question Local, is touching these debts, or things in Action, Goods considerable or 〈…〉. in what place or Diocese, they shall be said to be, as Bona Notab. viz. whether in the place where the debtors be, or where the Obligation, or other specialties be. And as to this, the Law hath been taken, that because the persons of the debtors be movable, passant, and transitory; therefore these debts shall be said to be, and to make Bona Notabilia, where the Bonds, or other Specialties be, and not where the debtors inhabit and dwell: and so was it not long since conceived by Justice Walmesly, Hil. 37. Eliz. M. Com●. Da. Vide 13. & 14. Eliz. Dy. 305. and Justice Beaumond in one Pretimans Case, no other contradicting it. Herein therefore many are mistaken, who only in respect that the persons of the debtors do dwell in foreign Dioceses, other than the places of the death of the Testator, or where his other goods were, do take Administration in the prerogative Court, though the Specialties remained, where the party died, or his goods residue, were. But in case the debts be only by Contract without Speciality, than indeed they are to be esteemed Bona Notabilia, there, and in that place, where the debtor is as the said Judges well ceived the difference. But in case Land be given to Executors, for payment of Debts or Legacies, this shall not be Bona Notabilia, as I take it, though it be Assets. Of the validity, and invalidity of Probates. AS to the third Point, we will first see of what validity an erroneous proof is, and thereabout we shall find this difference: admitting that one hath not Bona Notabilia in divers Dioceses, so as of right, the proving of the Will, appertaineth not to the Metropolitan, and yet the Will is proved before him; this is not merely void, but stands in force, till it be reversed by some sentence upon appeal, 22. Eliz. as was resolved between Veare and jeoffries, in the late Queen's time. But on the other side, in Case one have Bona Notabilia in divers Dioceses, or a Peculiar, and a Diocese, and yet the Will is proved before the Particular Bishop, within whose Diocese part of the goods are; this is merely and utterly void, without any reversal. So also of proving in some Peculiar. And in Case one have Bona Notabilia, both in the Diocese of Canterbury, and in the Diocese of York; the Will must be proved, either before both Metropol●ta●es, if within each of their jurisdictions, there be Bona Notabilia in divers Dioceses; or else, as I take it, if there so be not in any of the places, then before the particular Bishops in those several Dioceses, where the goods are. Or if within the one jurisdiction Metropolitan, the Testator had goods in divers Dioceses; and in th'other, but in one Diocese; then in the one place is the Will to be proved before the Archbishop, and in the other place before the Particular Bishop, as I conceive. And so also of peculiar jurisdictions. And in some places Archdeacon's have peculiar or jurisdiction ordinary and power to take Probates of Wills and Grant Administrations. But where any like error or misproving is in these respects, it is cause of reversal or of nullity, according to the former difference; so also, if there be falsehood in the proof, were it Communi forma, that is, without witnesses, or by examination of witnesses, yet may it in the Spiritual Court be undone; if either disproof can be made, or proof of revocation of that Will once made, or of the making of a later. Now, yet admitting the Will true and right, and also rightly proved; let us yet see the force and strength of the Proof, or Will so proved. It being under the Seal of the Ordinary, cannot be denied, saith one Book, to wit, whether this showed forth, be a Will proved or not, no, though the proof be but endorsed on the back, 9 Ed. 4. 47: 22. Ed. 4. 50. 22. H. 6. 52. viz. that it is so proved, saith the Book: but notwithstanding the Defendant so sued, may deny that the Plaintiff is Executor, as not being concluded nor estopped by the Probate, so to say. And the reason is, because the Seal of the Ordinary is but matter in Fact, and not matter of Record; Blow. Com. 282. 44. Ed. 3. 32. 19 Ass. p. 2. nor are the sentences of divorce, and the like, in the Spiritual Court, judgements, or matters of Record, as hath been oftenheld. Of the Relation of Probate and Refusal. AS for this last Point, both the Proving, and the Refusal shall have Relation to the death of the Testator, as I take it to divers purposes. So as to the Proving, saith the Lord Dyer expressly, Blow. Com. 281. a. 283. and confidently in Greisbrooke, and Fox's Case, and the resolution also of the Case proves it. For there Administration being committed be fore any Will proved or notified to the Ordinary, as it should seem the Administrator sold some of the goods to I. S. and after the Executors proving the Will, brought an Action of Detinue, for those goods against I. S. who pleaded this Administration and sale, and thereupon the Executor demurred, and Judgement was given for him, as having by the proving of the Will, disproved the Administration ab initio, but it is true, that judgement was given only by two Judges; one being absent; and th'other dissenting in opinion; yet I think it was right, and according to Law; and that Refusal shall have the like relation; else could not the Administration relate to the death of the Intestate, 18. H. 6. 22. 2. 9 E. 4. 33. 47. as it doth to some purposes, expressed in divers Books, Not to make good a Release made before Co. lib. 5. 28. viz. to have an Action of Trespass for goods taken before Administration committed, 36. H. 6. 8. 2. Ma. Dy. 110. and to have a rent growing payable in that mean time, etc. What Fees to be paid upon Probate, or for Copies of Wills, or Inventories. Per Stat. 21. Hen. 8. Cap. 5. 1. Where the goods amount not above five pound. only six pence to the Scribe. 2. Where they be above five pound, but under forty pound. two s. six d. to the B. B. twelve d. to the Scribe. 3. Where above forty pound to be taken, but two s. six d. to the B. B two s. 6. d. to the Scribe; or, r● d. for each ten lines of ten inches long at the Scribes choice. THese Sums are to satisfy, both for Proving, Registering, Sealing, Writing, Praising, making of Inventories, giving Acquittances, Fines, and all other things concerning the same. Where Lands is given to be sold, neither the money raised, nor the profits thereof shall be accounted as any of the Test ators goods, or chattels, saith the Statute. Note, that the Will is to be brought with wax thereunto ready to be sealed, and proof to be made of the Will, according to common Custom. For making the Inventory, the Executor is to take, or call to him two Creditors or Legatees of the Testator, and do it in their presence, or in their absence or refusal, two honest persons being the next of his kin, or in their default, two other honest persons. The Inventory is to be indented, and one part left with the Ordinary, and the other to remain with the Executor. The Executor is to make oath for the truth of it. For a Copy desired by any either of a Will or Inventory, no more is to be paid than before is allowed for the Registering, with the like election to the Scribe, or Register, as is abovesaid. Master Swinborne saith, that an Executor is to swear, and, if it should be thought fit, to be bound to make a true account when he shall be thereunto lawfully called by them Ordinary: See also 31. E. 3. cap. 11. Of this account, see him, pag. 274. and of accounting some Books of the Common Law make mention, An Administr. shall account as an Executor; Fitzh. Ex. 91. and 837. viz. 18. E. 2. tit. Brief. as 13. of Edward the third, Fitzh. Exec. 91. Where True faith, that of a thing in action, no account shall be before the Ordinary; 48. E. 3. 14. 15. but Parn. seems of a contrary opinion. Of a duty resting in account, it is said, the Legatee shall have remedy by account, in the Spirit. Court. 81. Ed. 4. f. 3. Moyle. And else where it is said, that where a debtor is made Executor to the Debtee, he shall yet account before the Ordinary, for this debt: yea as of money in possession, saith one, which others denied. An Executor by wrong, 4. H. 7. 15. per Wood shall be drawn to account before the Ordinary, 9 Ed. 4. 47. saith Moyle Justice. Dost. & Stu. 78. b 21. Ed 4. 22. But saith S. German, he may not force any to account against the Order of the Common Law; Blow. Com. 544. 4. H. 7. 15. not showing what that is. Kelw. r●p. 64. a. And ●emp. Edw. the 4. it is said, at least by the Reporter, that after the will proved, the Ordinary hath no more to do, quod non credo. Also of the oath of an Executor, divers Books tell, but not to such purpose as Swinb. but truly to perform the Will. What things shall come unto Executo●s, and be Assets in their hands, and what not. THe things which shall come to Executors, are of great multiplicity, and would make a large and confused heap, if tied together in one bundle or lump. I will therefore divide and sort them out in parts, after the best manner I can. First, we will divide them into things possessary, or actually in the Testator, and things in action, or not actually in the Testator. Secondly, the possessary into chattels, real and personal, or (as some less properly express it) movable, and immovable. Of Chattels real possessary. THese may be divided into two kinds, viz. living, and not living; the living are not many and various. 1. The wardship of the body of another, be it by reason of a tenure of the present owner, or by Assignment from the King, or other Lord of whom the tenure was, is a Chattel real, not personal, though it be an interest in the person of another, but it is in respect of a tenure of Land, or other hereditament, and is for years viz. during the minority, or till marriage had, and so is real. Next, a Villain for years as by Grant for a term from him that had the Inheritance is a Chattel real. As for an Apprentice, for years, it is by Custom, as I take it, that he goeth, or is derived to Executors: but for reason after showed; I think this Interest be not in the realty, but in the personaltie rather. So of a debtor in Execution for debt, the interest in him or perhaps more properly in his liberty is not as I conceive (for reasons which after I shall express) a real, but a personal Chattel. The like Law of a Prisoner taken in the Wars. As for Fishes in a Pond, Coneys in a Warren, Dear in a Park, Pigeons in a Dove-house, where the Testator had the Inheritance, or but for life, in the Pond, Warren, Parke, and Dove-house, they are not Chattels at all, nor to go to the Executors, but to the Heir with the Inheritance. If the Testator were but a Termer, they are to go to the Executor, but as accessary Chattels, following the state of their principal, viz. the Warren, Parke, Dovehouse, Pond, etc. The real Chattels, not living, are either in Houses or Lands most usually, and that three ways. First, by Lease for years. Secondly, by Wardship of Lands held by Knights-Service. Thirdly, by extent upon Judgements, Statutes, or Recognizances; Or in things issuing out of Houses or Lands, as Rents, Commons, Estovers, or such like. But where an Inheritor reserves a Rent upon a Lease for years, this shall not go to the Executor, but to the Heir, with the Reversion other than Arrearages behind, at the death of the Testator. Also Commons, Corodies for years, Advowsons', Tithes, Fairs, Markets, Profits of Leetes, and such like, which the Testator had for years, all which may accrue any of these ways, as the first are Chattel and Real. Yea, one simple presentation to a Church, upon the next avoidance, is a Real and not Personal Chattel, before it come to be void, and what then it is, we shall after show. And the title accrued to the Crown, upon attainder of felony, where the party held not of the King, viz. The Annum diem & Vastum, that is, Temp. E. 1. Assize 〈…〉. power not only to take the profits for a year, but to waste and demolish Houses, and to extirpate and eradicate Trees, and Woods, is but a Chattel, and therefore though granted to one and his Heirs, by the King; yet shall go to the Executor, and not to the Heir▪ Some doubtful, or less dear Cases, touching Chattels Real. FIrst, where we spoke of Wardship, it is not to be understood of Wardship, by reason of Soccage tenure, for that goeth not to the Executor, but he shall be next Guardian, who now after the death of the first Guardian, shall be next of Kinne, if the Ward continue under fourteen years old, else he is out of Wardship. Secondly, if one have a ●ease for three lives to him and his Assigns, this is no Chattel, nor shall go to the Executor, nor to the Heir, but to him who first enters and claims it as an Occupante, if no assignment be in the life of the Lessee made: Contrarily, of a Lease for many years, if three, or more, or less, 37. Ass p. 〈◊〉. so long live; this is a Chattel, and shall go to the Executor. So an extent upon a Statute, yet it is delivered to the party as a Freehold, viz. Vt liberum tenementum, but that only makes it to be quasi liberum tenemental as to the maintaining of an Assize, if wrongfully put out. Where one is seized in the right of his Wife, of Land, or other Hereditament, and is attainted of treason or felony, the profit thereof accrued unto the Crown, is but a Chattel, 4. E. 3. Ass. 166. Br●. Cha●. 15. and though the King grant it to one and his Heirs, yet it shall go to his Executors. And if one, having a Lease for many years, viz. a 100 500 or more or less, and do devise and bequeath the same to A. and the Heirs males of his body, and for want of such issue to B. and the Heirs males of his body, and dyeth, having issue a Son, the term shall not go to his Son, but to his Executor or Administrator, for it cannot be made a matter of Inheritance; so if A. had died without issue male, the term should not have gone or remained to B. but to the Executor or Administrator of A. as was lately adjudged in the Exchequer, between Sir Rober● Lew●nor, and Mistress Hamond. So of an advowson, or any other hereditament, granted or devised to one and his Heirs for a 100 years; or if such a termer grant a Rent out of the Land to A. and his Heirs, ●9. E. 3. 37. or the Heirs, or Heirs males of his body, So Manwood, if granted for life it is but a chattel, Blow. co●. 524. yet shall the same go to the Executor, and not to any Heir; for it being derived out of a Chattel cannot be any Freehold or Inheritance, but itself, a mere Chattel. Partus sequitur ventrem. Of Chattels Personal. Personal Chattels, or Goods movable, are also in like manner to be divided into quick, or dead. The quick are cattle of all kinds, as Sheep, Horses, Kine, Bullocks, Swine, Goats, Geese, Ducks, Poultry, etc. There may be also in living Creatures reasonable an Interest, as in a Chattel personal, as in the person of a man taken in execution for debt. And this I hold to be in nature, not a Real, but a Personal Chattel (as before was touched) for that debt is the root of it, and the body is but a pledge or gage, dischargeable instantly upon payment, release, or other discharge of the debt. Like Law of a Prisoner taken in the Wars, 〈…〉 88 Reg. orig.. f. 102. There is mentione! that the prisoner was to have a 190. l. for his ransom, for thereof and therein, as in a Chattel, hath the party a legal interest, as appears by a Writ of Trespass in the Register, for taking away a Prisoner. viz. Quare quendam Scotum prisonarium suum cepit. etc. And note lately, viz. In the time of King Henry the 8. the King himself, Bro. no. ca 295. & tis. Property 38, upon the winning of Bullen bought divers Prisoners of his Subjects. And by a Statute in the beginning of Henry the 6. his time, this Interest in a Prisoner is mentioned as valuable, and coming from one King unto another; 1. H. 6. cap: 5. therefore doubtless shall go from Testator to Executor by death, and not be enfranchised or freed thereby. The interest which one hath in an Apprentice, I take to be rather Personal than Real, though for years, because not springing cut of any Real root, as Wardship, and Villeinage do; but out of a mere contract. As for a Servant whose Master is dead, doubtless he is legally discharged, and is not Servant either to Heir or Executor; but meet and honest it is, that one of them continue him in service till a fit time of providing him a new Master, and fit for him, not to depart suddenly. Now for things personal without life; These are evident, viz. all householdstuff, Implements, and Utensils, Money, Plate, Jewels, Corn, Pulse, Hay, Wood felled, and severed from the ground, Wares, Merchandise, Carts, Ploughs, Coaches, Saddles, and such like movable things. More doubtful Cases touching things personal. FIrst touching things living: 10. E. 4. 14. 15. Come of wild ones. 22. H. 7. Relw. rep. f. 88 118. co. lib. 11. fo. 50. 18. H. 8. 2. If the Testator had any tame Pigeons, or Dear, or Coneys, or Pheasants, or Partridges, these all aswell as Chickens shall go to the Executors; so though not tame, if they were taken and kept alive in any Room, Cage, or like Receptacle, as Pheasants and Partridges often be, so fish in a Trunk, 10 E. 4. 14. 15. & 18. E. 4. 8. So of young Hawks in the nest. It is felony to steal these, Ergo. they be goods. as also young Pigeons, though not tame, being in the Dovehouse, not able to fly out; yet their Dams the old ones shall go to the Heir with the Dovehouse. And if the Testator had any reclaimed Hawks, they also as Chattels Personal shall go to the Executor, because they are things commonly vendible. And whereas Hounds, Greyhounds, and Spaniels, be not so commonly bought and sold, nor so anciently have been, yet are they now grown to be a Merchandise, and why not? for although they be for the most part but things of pleasure, that hindereth not but they may be valuable, as well as Instruments of Music, So an Hunter's horn, a Falconers lewer. both tending to delight and exhilarate the spirits. A cry of Hounds hath to my sense more spirit and vivacity than any other Music. Add hereto that there may be some profit, and advantage gotten by them, both quoad adeptionem boni, & ademptionem mali, Hares, Dear, Pheasants, Partridges, wild Ducks, etc. are good ●eate. the getting of some good food, and the preserving of others, as Lambs, Coneys, Fish, poultry, by kill Foxes, wild Cats, and others, which destroy them. And we know that money is recoverable in damages for taking away such, or a Mastiff, serving to keep an house. So of Ferrets to catch Coneys, etc. Therefore they are valuable. But it may perhaps be objected that none of these above are cattle, and therefore not replevisable, consequently no property in them, for when more than one living Chattel is distrained, the replevin is to be by the name of Averia signifying cattle. For answer, not to insist that one may have property in divers things, whereof no Replevin lieth, as Corn or Hay, not in Sacks nor Cartes, money not shut in bag, nor box, etc. I further say that even the word Averia may be applied to these, for so I find it to Hens and Capons in the Book of Entries, Fo. 142. viz. in the writ of Curia Claudenda, where the Plaintiff complains of the Defendants, not making his Mounds per quod averiaipsius. A. viz. Capones, galinae & alia Averia ipsius. A. that is whereby his cattle, viz. Capons and Hens and other his Cattles came into the Plaintiffs House and Garden to his damage, Hen. 8. fol. 3. etc. And both Newport, and Newdigate hold that a writ of replevin lieth of such things, though Brudenell were of contrary opinion, yet he also held an action of Trespass maintainable for taking of them, and therefore admitted a valuable property in them. Now come we to things without life, and first to those abroad in the Fields. Put the case that a man dies in july (before Harvest I mean) seized for life, or in Fee, or Tail, in his own right or his Wives, or estated for years, of Land, in the right of his Wife, being sown with Corn or any manner of Grain, the common saying is, Quicquid plantatur solo, solo cedit, yet this shall go to the Executor of the Husband, and not to the Wife or Heir, who shall have the Land: but Hay growing, viz. Grass ready to be cut, Apples, Pears, and other fruit upon the Trees shall go to the Wife, as also if they had been upon a man's own Land of Inheritance, they should go to the Heir, though the Corn should go to the Executor. The reason of difference is, because this later comes not merely from the soil, without the industry and manurance of man as the other do: Roots of Carrots, Parsnips, Land sold wher●n is ripe Corn and I take Hops though not sown, if planted, and Saffron, and Hemp, because sown to pertain as Corn to the Executor. All those yet shall pass to one, to whom the Land is sold or conveyed, if not excepted, though never so near reaping, felling, or gathering. But what if the Wife had the Lease for years as Executor to some former Husband or other friend, For he was Tenant for life in effect. and the Husband after sowing dyes, who then shall have the Corn? Certainly the Corn shall go to the Executor of the last Husband, at least so much as is more than the years value of the Land, or the making it up by addition of other things; The Wife also shall have convenient apparel 33. H. 6. 31. for the value is to be assetts for payment of debts and Legacies. Put the case again that the Husband and Wife were joint-tenants of the Land, and then the very Corn growing shall survive to her, together with the Land, and though the Husband sowed it, 2. Eliz. Dy. yet shall it not go to his Executor. Being in consideration of things growing on the ground, let us not forget to think of Trees sold by I. S. seized of the Inheritance of the Land to I. D. who dyeth before felling, this Interest is a Chattel which shall go to the Executor, and not to the Heir of I. D. but some colour may be that these, because fixed to the soil and Freehold, are real Chattels, as the Interest in Land is, and not personal: So also of Trees Excepted by him who selleth the Inheritance of the Land; but in both cases I conceive this interest to be personal, and not real; for that, as it is a propriety of Chattel in the Vendee or Vendor with exception, it stands in consideration severed, and abstracted from the soil, or ground where the Trees grow, though the Trees be not actually severed by the Axe from their mother Earth. But if the Lessor for years or life except the Trees, Co lib. 11. f 48. these continue parcel of the Freehold and Inheritance. And after Corn reaped, and before the Tithe set out, the Inheritor of the Tithe dying, I think the Executor, and not the Heir, shall have the Tithe after set out. Now Let us come home to the Testators house, Of Houses, or things about the House. and see in and about it, some doubts, what pertains to the Heir, and what to the Executor. Question hath been both of old and of late, touching Coppers, Leads, Furnaces, 42. E. 3. 6. Fats for Dyers, or Brewers, Pales, Rails Glass in Windows, Tables Dormants, Wainscotes, Doores, Locks, Keys and such like, to whom these should go? whether to the Heir or Executors? ●1. H. 7. f. 26. And in the latter end of Henry the 7. his time, an Executor taking a Furnace which was set in the middle of a house and not fixed to any Wall, the Heir brought an action of trespass against him for so doing, and it was adjudged for the Heir, viz. that this was to go as part of the Freehold, and Inheritance to the Heir; and long before in Edward the third his time, 42. F. 3. f 6. it was debated whether it were waste in a Lessee to remove or take away a Furnace or not▪ but I find no opinion delivered by the Judges: But in the late Queen's time, Justice walinesly said that the Lord Dyers opinion was, that where the Furnace is not fixed to the Wall, the Lessee might within his termetake it away. H. 37. Fliz. Augustine's case. Contrarily, if it were fixed to the Wall, for than it strengtheneth the house. And yet notwithstanding it might be in the one case so removed by the Lessee, yet is it not there, as he said, a Chattel personal or movable, so as it is attachable; and there the case being that a Clothier being a Termer of an house had fixed a Copper to the Wall with Looms and pricks necessary for his Occupation, a Judgement being had against him, the Sheriff delivered the Copper in execution as a Chattel, and after the Lessee took it up, and it was taken from him by virtue of the Execution; whereupon he brought an action of Trespass, and by all the Judges, the action was mainetainable. And whereas it was found by the Jury, that by the Custom of Kent, the Lessee might remove such a Copper; Justice Beaumond, said that without any Custom a Lessee might so do at any time during his term. But it is to be noted in the said case, that the Furnace was by itself delivered as a movable Chattel, and not as part of the house, for that was not meddled withal, nor at all delivered in extent (as in the case between Miles and Prat, where both house and Copper were delivered upon a Statute) the house belike being held upon such a racked rent, as that the party did not desire to have it, for he might have had the whole being a Chattel, and so have used the Copper during the term. And as touching all other fixed things, the Law was taken in the said case in Henry the 7. his time, to be all one, as in the case of the Furnace, viz. that they should go to the Heir, save only that for glass in the Windows, Pollard said it was otherwise, viz. that that should go to the Executors, which none there denied. But since, in the late Queen's time it was otherwise resolved touching glass, 〈◊〉 lib. 4. f. 63. 64▪ that it should not go to the Executors, and the like was there said, touching Wainscotes, and so also by the Lord Ander, in the said case of Austin. And touching Posts fixed, for that they be parcel of the Freehold, so also of Millstones, anvils, Doores, Keys, Windows, none of these be Chattels, but parcel of the Freehold, or thereto pertaining, therefore, not the Executors. Now to come to Gardens also: Whereas, I before laid down a difference betwixt things sowed, Things in Ga●dens. or not arising from the Earth, without manuring, and such as grow of themselves; It will thence be concluded that the roots of Carrots, Parsneps, Turnips, Skerrits, and such like, coming and arising from yearly sowing, must go to the Executor, and not to the Heir; the case being so, that the Gardener and Sower had the Inheritance of the Garden, or Soil, now though in most places this can rarely be a question of value, yet about London, and some great Towns it may, and therefore not unworthy of a line or two, a thought, or two, the rather for that the reason of this case may give light touching right in other Cases. And in my opinion these, notwithstanding, there is a sowing and manurance to generate them, and cause their being, shall go to the Heir and not to the Executor: my reason is for that the thing of profit is the root which is hidden in the ground, and I hold it no reason, nor agreeable to Law, that the Executor should dig and break the soil and ground to search for her entrails; he is to content himself with that which is above ground, as millions of all kinds, and the like whose fruit is above the ground; but as for Artichoks, though the fruit be above the ground, yet I think they have no such yearly setting, or manurance as should sever them in interest from the soil, therefore they shall go with it to the Heir. Let us now consider of things, though not fixed to, yet usually kept in houses, viz. writings, and evidences, whereabout generally, no doubt can be, but that they follow the interest of the Land, so as if they touch inheritance, they pertain to the Heir, if but Term's Goods, Chattels, or Debts, they pertain to the Executor, yea so do Statutes, and Bonds in Law (howsoever otherwise in equity) though they concern the assurance and enjoying of inheritance purchased. What if A. mortgage the inheritance of Lands to B. upon Condition of redemption by payment of 500 pound to B. his Heir, or Executor, and B. dyeth, the Deeds being delivered into his hands; now the Heir, not the Executor, shall have them; for though the money may be paid to the Executor, yet mean time the Land descends to the Heir, nor is there any debt to the Executor, for A. may choose to pay, or not. Put it on the other side, that the Land had been sold for 500 pound, not paid to A. but a Condition that if not paid to him, his Heir, or Executor, by such a day, then to re-enter; and A. dyeth, here is a debt to the Executor, and no Land descended to the Heir of A. yet shall the Heir have the Deeds, for that a Condition is descended to him. Question hath been touching Boxes and Chests, wherein the Evidences concerning inheritance are; and although the better opinion in our Books, doth pitch upon this difference, that where they are sealed up, 〈…〉 2. 36. H. 6. 2●. 18. E. 3. 4. ●. H. 7. 15. they shall pertain to the Heir, otherwise, where not sealed; I cannot conceive that difference to be grounded on good reason; but rather think that Boxes, which have their very creation to be the houses or habitations of Deeds should, as appurtenant to them, go to the Heir, whether sealed or not. On the other side Chests made for other use, viz. the keeping of Nappery, or Apparel, shall not, as I conceive be taken as appurtenant to Evidences, because some be in them, Quae. If sole use that way make a difference or not. for so may other things also be: Nor as touching them can sealing be of any effect, but rather locking, and not locking must make the difference touching them, if any difference by enclosure. Of things not actually in the Testator, but accrueing to the Executors, by or after the Testators death. These be of divers sorts, the first and chief whereof are things gotten and acquired by Action or Suit. Secondly by Condition or Covenant without Suit. Thirdly, by Remainder. Of things in Action. TO speak first of the first, it is clear that debts due to the Testator, be it by Bond, Statute, or Judgement, or for Arrearages of Rent, are not assets to charge the Executor, until receipt of them, and it is as clear that the Actions to recover these do pertain to the Executor, See Stat. 〈◊〉. H. 8. cap. 17. Remedy for Rents of Inheritance, or for life. and that the debt and damages recovered shall be assetts to charge the Executor. So also of Actions of Detinue, and of covenant for any thing personal or any Chattel Real, A Church of the Testators Inhere, become void in his life, comes to the Executor as a thing in action but is not Assets, for not vendible. Lease, Wardship, or the like. But perhaps some will doubt of Covenant touching Inheritance, viz. the assurance of Lands or enjoying thereof, free from this or that encumbrance or the like: Yet even in those cases, if the Covenant were broken in the Testators life time; I think clearly the Action is accrued to the Executor, for that his Testator was to recover damages in the Action of Covenant for that breach, and he being entitled to these damages as principal, and not any accessary thing in that action, the Law hath cast that action upon the Executor. And that is the cause why, if waste be committed in the life of the Lessor by his Lessee, and then the Lessor dyeth, his Heir can have no Action for this waste. viz. because he cannot recover the treble damage, as neither can the Executor have it, for that he cannot recover locum vastatum, the place wasted, the Inheritance whereof is in the Heir. 11. H. 4. 32. 45. E. 3. 3. 〈◊〉. na. br. 59 That an Executor at the Common Law could not maintain an Action of trespass for goods of his Testator, taken away in his life time seems to be employed by the Statuten in the time of King Edward the third. 4. E. ● c. 7. And the like given to Executors of Executors p●r. 〈◊〉. 25. E. 3. c. 5. Which gives such action: Yet it seems that a Replevin was mainetaineable by the Executor, at lest in some cases for goods taken or distrained in the Testators life time: But in case the distress were for Rent, Service, it is said a little after the making of that Statute, 17. E. 3. Fit. 106▪ that the Lord may not now avow for his Rent, or Service, because his Tenant is dead, but must set forth the matter, and thereupon justify to excuse himself from answering damages, and the Executor shall by this Action recover the cattle or Goods, and that by the Common Law, cap. 21. meant 〈…〉. saith the Book, though the Statute of Marlebridge had never been made, for that the property remained in the Testator. Note it speaks not at all of the said Statute of 4. Edward the 3. 21. H. 6. 1. but 〈…〉. contra▪ But Newton in the time of King Henry. the 6. would have it that the Executor in that case should not have a Replevin but an Action of Trespass grounded upon the said Statute, viz. 4. Ed. 3. Which me thinks cannot be by any means, by reason of the Statute of Marlebridge. cap. 3. Non ideo puniatur dominus, etc. for the Executor, as well as his Testator, is thereby restrained, as I think, from the Action of Trespass against the lord 21. H 8. cap 19 4 E. 3. As for that no Avowry can be made upon the Tenant, that is now remedied by a late Statute: The other Statute hath been taken to extend to other things than Goods movable, for where a Church becoming void, The B. of Co●●nt. & ●. and Saves case M. 32. & 33, Eliz. in come. ba. a stranger presented thereunto wrongfully, and the Patron died, it was resolved in the late Queen's time, So of Ravishment. Dl. guard. 7. H. 4. ●. & 7. H. 4. 6. Erect. 〈◊〉. & Tilled. Do ●lauso fracto merely it lieth not. 11. H. ●. 3. that the Executor might by the equity of the said Statute, maintain a Quare impedit. But whether an Action of Trespass lieth for an Executor, against him who spoiled the Testators Corn, Grasse, or Wood, growing, hath been questioned, but no where resolved to my knowledge. I think it may lie with some difference: First, for that the Statute of 4. Edward the 3. doth not only speak of Goods carried away, as limiting the Law to that trespass solely and particularly, This T●riā. Just, did very judici●●●sly urge in S●les case supra. but speaks generally of Trespass done to Testators; and then brings in that particular of goods, as one Instance. Now there be many cases of instances or ensamples given in acts of Parliament, which yet do not restrain the remedy or purven to that particular, or from extending to other cases, of like nature. Thirdly, the Statute speaks of Trespasses remaining unpunished, which it meant to redress: But it should still leave many unpunished, if it should have no larger extent, than to that one singular trespass, of Goods taken away, viz. moveables. Again, the Testator was clearly entitled to a recovery of damages for this other trespass, which if he had recovered, should have come to his Executor: Yea the things themselves, all if felled in the Testators life, and part though not felled, should have come to the Executor, therefore also the damages recoverable in lieu thereof, out of which recovered, the debts and Legacies of the Testator are to be satisfied. Besides, this Action of Trespass is a thing severed from the state of the Land, so as if the owner thereof had, after this trespass done, aliened the Land, yet had this Action remained to him, as I take it, clearly. And why not as well as where a Trespass is done upon the Land of the Lessee, and then the term expires, this doubtless doth not take away his Action, nor his Executors. But me thinks here may be some differences probably taken, as first between a Trespass in destroying or taking away Come growing, and a trespass in Grass, or Wood growing: for the first being of that nature, as that, though the Owner had a state of Inheritance in the Land whereon it groweth, & should have died before severance and felling, Yet it should have gone to the Executor, and not with the Land to the Heir, therefore doubtless doth the Action for destroying or taking away thereof, accrue by the operation of Law to the Executor, in lieu of the thing taken or destroyed. Otherwise, perhaps of Wood or Grass, Which by the Owners death should have gone to the Heir, and not to the Executor. And yet here again another difference me thinks may be betwixt Grass and Grass, viz. betwixt that in Pasture and that in Meadow, yearly mowed and turned into Hay, not lest to be consumed by the mouths of beasts, as that growing in Pasture. For as the Law distinguisheth between these Soils, gives precedency to Meadow, and makes it waste for a Lessee to Plough it up, not so for Pasture, Yea Tithe is paid of Hay, but not of Grass growing in Pastures, so the Meadow Grasse being in the Owners purpose and intention, as a thing severed from the soil, should me thinks so be also in the eye, and estimation of the Law, and therefore stand in a different state, and account from Pasture Grasse. A third difference may be in the manner of the Trespass, viz. Where the Meadow Grasse is eaten up with cattle by a Trespasser, and where by him mowed and carried away as Hay, for in this latter case an Action of Trover and Conversion for so many loads of Hay, is doubtless maintainable by the Executor, though it should be admitted that in the other case of consumption by the mouths of beasts without severance, no action should be maintainable by the Executor, which yet I admit not, but think the contrary probable. For when Meadow ground, which yearly conceiveth (Sol sine homine generat herbam) shall be ready to be delivered of her burden, if a stranger putting in an head of cattle, which swallow up, and tread down this fruit of her womb, before the Mower with his scythe, come as a Midwife to help her delivery, if then by the hasty death of the Owner, before Action brought, At least me thinks; Action upon the case here and before should be maintaineable. this great Trespass should be dispunishable, it were contrary, as me thinks, to the purpose of the said Statute, and a great defect in the Law. Yet here perhaps touching this, a fourth difference may be, or arise out of the time of the death of the Owner, viz. where he dyeth before time of Mowing, and where not; for Dato that in the former case, because, if such destruction or consumption had not been; yet the Owner dying before severance, this should not have come to the Executor, but have gone with the soil to the Heir, that therefore the Executor, who is not damnified should recover no damages. Yet in the other case, the Owner living till after Hay time clearly passed, viz. till the end of August, me thinks now since this fruit of the Meadows womb should have been a Chattel severed, had not this Trespasser made unlawful prevention; Therefore the Executor, to whom the same should have come, towards the performance of the Will, should have out of the said Statute, an Action, and remedy, reached unto him to recover recompense in damages for this wrong done in retardationem Executionis Testamenti. A fifth and last difference may perhaps be in the state of the Owner, for Posito, that where the Land is his Freehold, or Copyhold Inheritance, no Action should be given to his Executor, for Wood, or Grass taken or destroyed in his life time; yet where he is but Tenant for years, Guardian, or Tenant by extent, so as the very state in the Land was to come, and is come to the Executor (together with Quicquid plantatur solo) me thinks the Executor should have, together with the state in the soil, the Action to punish the Robber of, or Trespasser upon the soil. Thus having scanned and sifted, to the best of my ability, all differences and circumstances of this point, how far I am wide, and wherein right, Aliorum sit judicium, or rather, Altioris esto judicii. But this is clear, that wheresoever Executors do recover any damages for trespass or other wrong, 3. H. 6. 3. Litleton fo. 42. a. done to their Testator, the money recovered (at least, if Execution be had, or money received) will be Assets, So held in Sales case of damages in Qua. imp. recovered conte of the presentment. in their hands, as well as debts recovered upon Bonds or Bills, or Lands, by them taken in Extent, upon Statutes, Recognizances, or Judgements. Releasing. Yea without ever having these monies, Executors may make them assets in their hands, viz. by making Releases, 13. Ed. 3. 〈◊〉 9●. or Acquittances, or acknowledgement of Satisfaction, for this amounteth to a Receipt, and chargeth the Executors towards the Creditors, with the whole penal sum, though haply they receive but part, as the principal, or some like proportion. Therefore, there is great caution to be used by Executors in this kind, that unless they be sure they have Goods sufficient to pay all Debts, and Legacies, they make no Release, Acquittance, or Acknowledgement of Satisfaction, for more than they do receive, be it debt or damages. And the like caution to be used by them, touching submission of debts or damages, to arbitrement whereby discharges of the same may grow, for the submission to the Arbitrement, being their voluntary act, although the Arbitrators by their judgement do discharge the debt or damage in part, or in whole, yet shall the Creditors have like remedy thereupon, against the Executors, as if they had released, Error 1●. H. 4. 65. 46. E. 23. or, which is more, received the same. Yet upon a verdict in Qua. imp. the Wife▪ not the Executor of Husband did seize. 9 H. 6. c. 4. Other Actions there be of discharge, which as the Testator himself in his life time might have had, so may his Executor after his death, viz. Writs of Error, Attaint, deceit, Audita Querela, Identitate nominis. But this last is given by Statute. Whatsoever is regained by any of these ways, as unduly lost by the Testator, shall also be Assets. Special cases pertinent to the Premises. 1. Chattels come to Executors from the Testators, yet not Assets. 2. Assets which be no Chattels. 3. Things in Action, and in the personal●y turned into Chattels Real, & e contra. AS to the first, I exemplify thus, A. makes B, his Executor, and dies, B. makes C. his Executor, and dies. The Goods left by A. to B. as Executor, far exceeds his Debts, and Legacies, or let us suppose no debts nor Legacies of A. and that B. dyeth much in debt, above the Goods he leaveth, and did make no alteration of the property of the goods of A. but merely left them to C. his Executor. Now shall not the Goods which came to B. as Executor of A. and so from B. to C. be liable in Law, to pay the debts of B, yet in Conscience me thinks they should, and that C. should not receive them to his own use, as in Law he may, where A. left no debts. But if A. making B. Executor, did also by his Will give him all his Goods, and he in his life time made election to have them as Legatee; or by his Will, did so dispose of them, or appoint them to go, as the goods he had as Executor, could not be given or disposed: Now by this election they were altered in property from being his as Executor, and so as his own goods should be liable to his debts. But things in action could not be so given, or disposed, viz. Debts, etc. yet if D. were indebted to A. one hundred pound, and B. his Executor, took new bond of him, or another for it, giving up the old Bond, now was it become his own duty, and so shall stand in his Executor. Another instance of this, thus; If A. patron of the Church of D. grant to B. the next avoidance, Or if a strange, usurp in his life, and he dying, his Executor recovers in a Qua. imp. as by Sale, was done infra. Mich. 32. and 33. Eliz. the Church becomes void, B. dies before he presents, his Executor presents, and hath the benefit of preferring his son or friend, yet shall this make no Assets in his hands for payment of debts, for that he could not lawfully take money to present. So held in Sales Case, in come. ba. But if B. had died before the Church had become void; Then because the Executor might lawfully have sold it, Vende● 〈◊〉 p●test emerat ipse prius. the value should be Assets, in his hands, as I conceive, except perhaps the incumbent had died so hastily after B. that the Executor had not time convenient to find out a chapman, and to sell it. If in the other Case, a stranger had presented and got his Clerk admitted, and the Executors of B. had in a Qua. Imp. recovered damages, the money so recovered, should have been Assets▪ Thus much of the first, viz. that some things of the nature of Chattels, may come to Executors, and yet not be Assets. Touching the second, viz. that some things may be Assets in the hands of Executors, which yet are no chattels; I shall give but two Instances. 22. H. 8. 〈◊〉. Villeinage 46. First, where a man leaveth a Villain for years to his Executors, and the Villain purchaseth Land in Fee-simple, If he die, how shall this be Assets in the heir. and the Executor entereth into the Land; now hath he Fee simple therein; and this Land is Assets for payment of the Testators debts. 3. H. 63. and so 2. Hen. 4. 21. So, if a man by his Will, If by Feoffment per Markam, cap. I●st. contr. Rick●ill. give Lands in Fee to his Executors to be sold for performance of his Will. These (before the money thereby raised) are Assets, both for payment of debts, and of Legacies: But if the Lands had been given to be sold only for payment of debts, they should only be Assets for that purpose, and not for payment of Legacies: and so, if it were expressed to be for payment of Legacies singularly, this should not be Assets for debts, as I take it. For since these are not Assets of their own nature, See 9 El. Dy. 264▪ but so made by the Will and disposition of the Testator; me thinks they cannot be otherwise, nor farther Assets than as the Testator hath willed, and disposed; but though Lands thus given were Assets before the Stat. 21. Hen. 8. cap. 5. Yet how can it be so, since for the very words of the Statute be that if one will by his Testament or last Will, any Lands, etc. to be sold, neither the money thereof coming, nor the profits taken, shall be accounted as any of the goods or chattels of the Testator, which I conceive to be all one, as to say, that they should not be Assets; for when an Executor denieth himself to have Assets, the form of his plea is, Quod nulla habet, bona nec ●atalla, etc. Yet, since that Statute, 9 H. D. 264. viz. in the late Queen's time, 14. H. D. 31●▪ the Law was twice admitted, or conceived still to be according to the third of Hen. 6. viz. that the Land devised to be sold, or the money thereof coming should be Assets. Indeed, in neither of those Books, is there any mention of the clause in the said Statute; and it is possible that it might be forgotten, as in other Cases sometime hath happened. But casting about how to reconcile those Books, with the said Statute, and not to suppose the same forgotten at both times, both at the Bar, and Bench (though being but a short clause in the middle of a large Statute to other purpose, it might well so have been) at the last, though not hastily I grew to conceive, that the said clause being in an Act which limitteth the Fees of Ordinaries, and their Scribes, according to the value of the goods of the deceased, and then bringeth in this clause, that the Lands willed to be sold, shall not be accounted as any of the goods, etc. The Parliament meant thereby only to exclude them to this purpose, that they should not be accounted as part of the goods in the valuation, according to which the said Fees were to be rated; and though the words be general, that they shall not be accounted as any of the goods, etc. yet is it the more probable, that the Parliament meant no further than as aforesaid, because that clause after the Fees limited in answerableness to the values, is brought in by a Proviso, viz. provided always, that if the deceased Willed any Lands to be sold, the money nor profits shall not, etc. And thus perhaps it was understood and construed in the said late Queen's time, though no mention be of any remembrance of that clause or provision in either of those Cases reported by the Lord Dyer. As for the third, viz. the changing of things out of the personalty, into the realty, and e contra, I show it thus: If a debt were due to the Executor, as Executor by Statute, Recognisance, or judgement, and he sue Execution, and have Land of the debtors in extent: now is the personal duty turned into a chattel real. On the other side, if such an estate by extent, or a Lease for years mortgaged come to an Executor, and the debtor, or mortgager payeth the money due; now are these real chattels turned into Assets personal. Another special Case of Equity opposing Law. IF A. be bound to B. by Bond, Statute, or Recognizance for assurance of Land, B. dieth, & the Land descends to his heir; or be it that B. sold the Land to C. and assigned to him the Bond, Statute, etc. yet must the Suit, or taking out of Execution, be in the name of the Executor of B. and neither of the heir, nor Assignee. And that which is recovered, or gotten in extent, will be Assets in Law to charge the Executor, as I take it, yet in equity it pertains to the Heir or Assignee Quaere If the Executor meddle not, but only suffer his name to be used. Of things come to Executors by Condition. First, we will consider of Conditions bringing back to Executors goods, or chattels granted away by their Testators. Touching which, there is no doubt, but if the Condition be any other than for payment of money, or other things valuable by the Testator, Note Diff. or his Executor, the chattel returning to the Executors is Assets in his hands: as put the Case a Lease for years, Horses, Sheep, Plate, or other Chattel, were granted by the Testator to A. upon condition, that if A. did not pay such a sum of money, or do such other Act as the Testator appointeth, and this condition is not performed after the Testators death, now is the chattel come back to the Executor, and is Assets. But the question hath been (and perhaps may be) where the condition is, that the Testator or his Executors, shall pay the money to make void the Grantee, and accordingly, the Executor after the Testators death payeth the sum out of his own purse, not having any money of the Testators in his hands: in this Case coming in question, ●1. Hen. 7. tempore, Hen. 7. It was resolved at the last, that this redeemed chattel should not be Assets, but be to the Executor as his own proper goods, though at the first, three Judges were of contrary opinion, viz. that the goods redeemed should be in the Executor, as goods of the Testator. And truly I must confess, that I cannot yet find good satisfaction in that Books resolution, except we shall take the Case there to be such as that which is put and reported by the Lord Dyer, tempore Hen. 8. viz. that the money paid for redemption, was as much as the full value of the goods, pledged, or mortgaged, or else shall admit the Case to be, that this redemption was not by payment at the day conditioned. As to the first, it were rare, that any should lend money upon a mortgage, where the thing mortgaged, is not of better value than the money lent: rare also, that an Executor should take care to redeem with his own money, that which should yield no benefit or advantage to him, or his Testator. Let us therefore scan and examine the Point, since the same may come frequently in use; and this we may the more decently do, because the Lord Dyer in the Margin of the Case by him reported, as aforesaid, saith expressly, that the said other temp. Hen. 7. was not at all adjudged, himself having viewed the Roll, which he there sets down, and the names of the parties. We will therefore put the Case thus. A. possessed of a Lease for sixty years, of one hundred pound Land, mortgageth it for five hundred pound; or be it that the mortgage or pledge be of a Jewel, or piece of Plate for half the value, and that before the day limited for payment, and redemption A. having made B. his Executor dieth, and B. at the time and place maketh payment, as was conditioned. Now the question is, whether this Lease, Plate, or Jewel, being worth much more than the sum for which it was mortgaged, shall be in him wholly in his own right, and to his own use or partly, if not wholly as Executor to A. so as to be subject to the payment of debts and Legacies. Here it must be clearly admitted, that B. was enabled to this redemption only, and merely by the Condition annexed to the mortgage, or pledging. It must also be admitted, that this Condition, and the power or interest to take benefit thereof to him; came, and was derived only as Executor of A. This being premised, it must needs follow, as to me it seems, that the Condition working, and having his operation in the redemption to destroy the Grant, mortgage, or pledging, it must needs make these again the Testators goods, in statu quod prius, and so to be in B. as Executor; since in that right only, he was entitled to take benefit of the Condition. For what is it which hindered before this, from being the Testators goods; nothing certainly, but only the force and strength of the mortgage or pledge: Now by the redemption, that is become void, & hath it losts its force; therefore the property of these things must needs now be; as if no such mortgage or pledge had been; or as if it had at the first been void, and of no force: Thus must the Condition work for him, who made it, viz. A. the Testator, and those of the contrary opinion in the time of King Hen. 7. do yet say, That by this redemption, the Testator is so much in debted to the Executor, as he disbursed for the redemption; which could stand with no reason, unless by it the property and interest should be reduced to the Testators behoof. That thus it is, is also proved; as to me it seems by the Case of mortgage of Inheritance, upon which the heir making payment, according to the condition, is not now in as a new purchasor, but as heir, so as he shall have his age, and be in Ward, even for this Land: Yea, it shall be Assets in his hands for satisfaction of his Fathers, or other Ancestors debts, which in some respect is a harder Case than that of the Executor; for he hath means to satisfy himself of the money disbursed, either out of the thing redeemed, or other goods of his Testator, but the heir hath no such means. Yet it will be asked, how the Executor can be free from mischief, for if this thing redeemed be entire, as the Cup or the Lease, the whole will be taken in execution for the Testators debt. To admit this, yet here is one clear way of remedy, viz. the Executor may before such Execution, sell the thing, and so pay himself, and retain the surplusage to the Testators use, and the like of this is frequent in use, viz. for Executors to pay of the Testators debt, with their own money, and to make themselves satisfaction out of the Testators goods. Besides, it not impossible, that this redeemed thing should be thus in interest parted, that answerably and proportionably to the sum disbursed for redemption, with reference to the value of the thing redeemed, a moiety or third part, or three parts thereof should be to the Executor in his own right, as his own proper goods, and the rest in him as Executor. As posito, that A. and B. were Tenants in Common of such an entire Chattel▪ A. maketh B. his Executor and dieth. Now hath B. one moiety as Executor, and another as his own proper, and upon a Judgement against him as Executor, that moiety only which he hath as Executor, must be taken in execution; and here may be remembered how in execution of a Judgement, or levying of an Amerciament out of an entire Chattel of more value than the sum to be levied, the whole is to be sold, and the surplusage above the debt or Amerciament is to be delivered back to the owner. For in all this debate, we must presume the thing redeemed by the Executor, to be of better value than the sum paid, else we may easily admit the whole to the Executor. Again, the Lease for years, is not so entire a thing; I mean the Land let, but that thereof partition may be made; yea enforced by Action between joint tenants, and Tenants in Common: But here will be objected, the Case of redemption by the daughter and heir; who though she have a brother borne after; so as now she is no longer heir, yet she shall, as the Book saith, retain the Land redeemed from the heir as a Perquisite or Purchase. As for this (which I will not oppose) the Law so frameth to the favour of the daughter, because of great mischief to her, if being stripped of the rest of the Inheritance by the birth of a brother, she should also lose that which her money had redeemed, without having any remedy to have her money again, or any recompense for it; but in the other Case, there is no such mischief for that the Executor may pay himself as hath been showed. Now on the other side, if the Case shall be understood, that the redemption was by payment after the day, then will I easily admit that the property or interest, is in the Executor to his own use; or that the Condition, now having no power to reduce it back, or to operate any thing: It is rather a re-emption, than a redemption, since it was at the Will of the Mortgagee, to dispose it at his pleasure, and any stranger, as well as the Executor might thus have redeemed, viz. repurchased it, therefore only Equity and not Law in that Case can make any part of the value Assets in his hands: And so also I think if we should admit in the other Case of payment, at the day that the property of the chattel is to the Executor as his own, and not his Testators goods, no part of surplusage of value, can in Law be Assets, howsoever in Equity. Lastly, if the Executor redeem by payment at the day with the Testators own money or goods, none will doubt, but that the thing redeemed is in him as Executor, and the money by him paid for redemption is well Administered, the goods redeemed being of better value. But this way it makes no difference, whether the whole value of the goods redeemed, shall be held Assets; and the money paid for redemption stand drowned therein, or that that sum be still adjudged in the hands of the Executor, as Assets, and only the surplusage of the thing redeemed over and above the sum paid for redemption. Things accrued by Covenant or Assumption. IF A. Covenant with B. to make him a Lease of such or such Land, by such a day; and B. dieth before the day, and before any Lease made; now must A. make the Lease to the Executor of B. and the Lease so made to him, shall be in him as Executor, and consequently as Assets. This is proved by the Judgement, in the Case between Chapman and Dalton in the late Queen's time. Ploughed. Com. Yet I confess, that it is not expressed in the resolution of this Case, that this Lease should be Assets, but that the Executors should have the Term as Executors, which implieth as much in my understanding; and the declaration, whereupon the Defendant demurreth, sets forth the breach of that Covenant to be in retardatione executio●is testament. so as the damages thereupon recovered, viz. 300 and 30. pound were Assets, and consequently also, should the term have been in ●ew and recompense whereof these damages were given. The like Law, if A. assume upon good consideration to deliver in to B. by such a day twenty quarters of Malt, or so many loads of Coals or Wood, or any other Wares or Merchandise; and this is not performed in the life of B. but after to his Executor, it shall be to him as Executor, and shall be Assets in his hands, as well as the money recovered in damages for not performing should have been. Of things accrued by remainder, or increase. IF a Lease be made to one for life, the remainder to his Executors for years, and he dieth, this will be Assets in the hands of his Executors, though it were never in the Testator, as was in the later end of the late Queen's time, resolved by three Justices, the Lord Anderson only being of a contrary opinion; and there it was said, that Cranmers' Case, wherein the contrary in effect was resolved, was of little authority; for that there were first two Judges against two, till after, Mounson changed his opinion, upon a conceit, that there the estate was by way of use, which could make no difference; like law where a Lease for years is by Will bequeathed to A. for life, and after to B. who dieth before A. Although B. never had this term in him, so as that he could grant or dispose it, yet shall it rest in his Executor, as his goods and be Assets. As for a remainder for years, so in the Testator, that he might grant or dispose it at his pleasure, no doubt can be thereof, though the same fell not in possession to the Testator in his life time, yet no scruple nor doubt can be, but that this is Assets to the Executor, even whilst it continues a remainder, and before it falleth into possession, because it is presently valuable and vendible. Nor much of other nature, to these are the Cases, 11. H. 6▪ 35. per Babington. where the Executor Marchandizing with the goods of his Testator, maketh gain thereof. So if the Sheep, or other cattle of the Testator do breed, viz. bear Lambs, Calves, Colts, etc. after the Testators death, even these which were never in the Testator shall yet be Assets, and so the Wool growing upon the Sheep after the Testators death. But there is one Case worth the consideration and worthy of some doubt, as I think, and that is this. One leaveth to his Executor a Lease for years of Land, worth twenty pound by year, and the Executor keeping this in his own hands, one year after the Testators death, doth make thereof thirty pound in clear gain above all charges, now whether, as to a Creditor, this whole thirty pound shall be Assets, or only twenty pound, and the Case simply thus put, shall be understood of an occupying, and manuring without any stock of the Testators; and than if the Executor did stock it with his own Sheep, or other cattle, as he must have borne the loss by rot or death; so is it reason, that if the manurants prove gainful, he reap the fruits thereof in recompense of his adventure, and of his industry, skill, and good husbandry. But if the Testators stock of Sheep and cattle were (as of necessity, or for the better advantage of the Testators estate) continued upon the Lease Land, then is it reason, that the gain or loss whethersoever of them God sendeth, do redound to the Testators estate. Like Law, as I think, if an Executor finding, that he cannot instantly, after the Testators death, let the Lease Land near the value, shall therefore buy seede-Corne, and hire the ploughing, etc. But it may be said, that the Lease hath one entire valuation at the first, upon the appraisement. To this I answer, first, that the value upon the appraisement is not binding, nor much respected at the Common Law, if it be too high, it shall not prejudice the Executor; if too low, shall not advantage him; but the very value found by Jury, when it comes in question, whether the Executor have fully administered, or have Assets or not, is that which is binding. Next I say, that if a long Lease come to Executors, of Land worth an hundred pound by year, and no sale is made thereof by the space of a year or more, now the term continuing of the like value, as at first, it is no reason but this hundred pound raised the first year, should go towards the payment of debts and Legacies rather than any of them should be unpaid. This thing, I mean the knowledge of them are useful two ways, viz. First to give light to Executors, to discern what unto them of right pertains: Next to show unto Creditors and Legatees, what and how far things shall be Assets, that is to say, goods to enable, charge, and bind Executors to pay debts and Legacies. For whatsoever any of these ways cometh to the Executors from their Testator, or is recovered by any of these Actions, shall be in their hands Assetts, the Cost and charges of recovering deducted. CHAP. VII. What manner of Interest an Executor hath in his Testators Goods and Chattels, and how different from the common Interest they or others have in their own proper goods. THe Interest which an Executor hath as Executor in the Goods of his Testator is much different from the absolute, proper, and ordinary Interest, which every one hath in his own prope: Goods, as may well appear in and by these points, 1. Although if a stranger take away these Goods, the Action of Trespass for the Executor, is of general form, 24. E. 3. f. 35. Quare bona sua cepit, calling them his Goods, whereas a man Outlawed in Debt, etc. or convict or attainted of felony or treason, 32. H. 6. 34. forfeiteth all his own Goods, yet these which he hath as Executor, shall not be forfeited. If a Villain be made Executor, his Lord cannot take these goods, though he may take all the Villains own Goods: ●itl. tit. villainage. 41. 42. and for taking such Goods, or for a debt due to the Testator, a Villain may sue his Lord. Nay, if the Executor grant all his Goods, some good opinion hath been, 10. E. 4. fo. 1. that these which he hath as Executor should not pass, Yet 39 H. 6. f. 15 yea the Lord Dyer so held in the late Queen's time, A release of all actions, by an Executor, extincts actions as Executor. with this difference, viz. Where the Grantor is named Executor in the Grantee, there the Goods which he hath as Executor should pass, but otherwise if he be not named Executor in the Grantee, But Frowicke i● against it in 20. H. 7. K●l. 64. and that this opinion is probable, will further appear by that which followeth. Secondly, the Executor cannot by Will give or bequeath the Goods he hath as Executor, and if he die intestate, and Administration of all his Goods is committed to I. D. yet hath he nothing to do with the Goods which the Intestate had, as Executor to his Testator: Thus all his Goods, reacheth not to his Goods as Executor. Thirdly, whereas a man's Goods stand liable to the payment of his debts, both in his life time and after. See these so resolved in Blow. come. 525. into R●ansby & Grantham. P. 20. Eliz. The goods which a man hath as Executor, are not to be taken in execution for his own debts either upon a Recognizance Statute, or Judgement had against him. And if such a one die indebted, leaving to his Executor much Goods, which he had as Executor; these are not Assets in his hands, liable to the payment of his debts, but only for the payment of the first Testators debts or Legacies. Therefore a Quo min. brought by an Executor, showing that he was not able to pay the King's debt, because the Defendant detained from him an 100 pound, which he owed him as Executor to I. S. was overthrown, for that it could not be intended, saith the Book, that the King's debt could be satisfied with that which the Plaintiff should recover, and receive as Executor. Whereas a Woman being possessed of any Chattels personal, viz. movable Goods, all be devested out of her into her Husband by her marriage, so as if he die, and she overlive, they be not hers again, but her Husband's Executors, or Administrators, and if she die, all be the Husbands, without being Executor to his Wife. It is not so of the Goods which she hath as Executor, these still remain in and to her, if her Husband die, and if she herself die, for that she hath them as it were in another right, viz. as she represents the person of her Testator, her Husband shall not have them, if he be not his Wife's Executor, and so Executor to her Testator. Lastly, This may be in his name only out of whose possession the goods were taken. whereas the Writ of Trespass seems to make no difference between ones own Goods, and those he hath as Executor, that being a possessory Action or suit grounded upon the possession; yet come to an Action of debt, which more tastes and participates of the right, and there are they differenced: for where for my own debt, when I sue, the Writ saith Debet & detinet. viz. that the Defendant owes me, and detains from me that sum. Yet when I sue as Executor, the Writ saith not, Co. lib. 5. fo. 32. debet, he doth owe me, but detinet only, he detains from me, as admitting that he is not the Debtor to me, though he should pay me; and so where I am sued as Executor, the Writ makes me not a Debtor, but a detainer; Otherwise, where in my own right, I owe and am sued for a debt. Accordingly, where Judgement in an Action of debt is given against one as Executor, it is not generally that the Plaintiff shall recover against him, but he shall recover of the Goods of the Testator, and therefore upon this judgement no Capias lieth against him, to enforce him to pay by Arrest of his body, because he is not properly debtor, but if after it be returned that he hath wasted the Testators Goods, out of which the said debt shall be satisfied; Then he having made himself a Debtor, a Capias ad satisfaciendum, shallbe awarded, against him, and then he shall be taken in Execution. So also in some cases of false plea pleaded, for where the Judgement is de bonis propriis, the Plaintiff may have a Capias ad satisfaciendum, 34. H. 6. 43. and that Judgement is in divers cases for the damages, although not in many for the principal. As for the Capias before Judgement, in the mean process against an Executor, that is, because of his Contumacy in not appearing upon the former process. The reason of this different interest between an Executor and another, or between the same man's having goods as Executor, and others in his own right; as also of the different manner of one's being indebted as Executor, and otherwise in his own right, is well expressed by the Lord Cook, in Pinchons' case, viz. First, Co. lib. 9 88 b. that the goods which one hath as Executor, See this also Plo●. come. 520. a. he hath not in his own right, but in altar droit, that is, in the right of another, meaning his Testator. Secondly, that Executors are but the Ministers, and Dispensors, or Distributors of their Testators Goods. Of alteration of property in the Executors hands, so as some goods become his own, which he had as Executor. TO this head or Chapter, treating of the difference between the Interest in Goods, as Executor, and others had merely in ones own right, and to his own use, it is not impertinent, to consider how that which one hath at the first as Executor, may be changed in property, and become the Executors own to his own use, as other his goods, which he had not as Executor. Here let us first consider of ready money left by the Testator: for since pieces of money, viz. shillings, groats, pieces and half pieces of gold, cannot be known one from the other, it must needs follow that these coming to an Executor from the Testator must in some sort be altered in property, so as though the Executor shall be said to have so much in money or value, yet can it not be discerned which money in his house was his Testators, and which his own. Consequently the Sheriff upon the fieri facias, for a Creditor, who hath recovered against the Executor to pay debt owing by the Testator, cannot hold. CHAP. VIII. Of some cases and questions between the Executor and the Heir. THE Executor may in convenient time after the Testators death, enter into the house descended to the Heir, 21. Hen. 6. 30. for the removing and taking away of the Goods, If other goods taken among them he is excused 21. H. 7. 25 Vide lib. Intr. 640 It is so pleaded. so as the door be open; or at least the key be in the door: and this I understand of the door of each room: for although the door of entrance into Hall and Parlour be open, the Executor cannot by that justify the breaking open of the door of any Chamber to take goods there, but only may take those in the rooms which be open; and this is proved, 43. E. 3. 24. Br●. 145. Makes a quae. if it be locked. as to me it seems by the case of the chest with evidences, which, saith the Book, the Executor may take and put out the Deeds, delivering them to the Heir, viz. the chest being unlocked, as I understand it. Now a Chamber or other room within a house, locked is an enclosure of better respect than a chest. Blow. come. 280. But if the goods be not removed within convenient time, the heir may distrain them as damage fesante. Where the Testator recovered Land and damages, 43 Ed 3. 2. or a Deed and damages, he dying before execution, 10. Ed. 4 5. 6. the Heir shall have execution for the Land or Deed, Of the Deed execution first. and the Executor for the damages, but temp. Edward the 4. it is said that until the Heir sue a Scir. sac. the Executor cannot sue execution for the damages. If a Creditor be made Executor by his Debtor, and pay himself part out of the Goods, he cannot sue the Heir for the rest, 12. H. 4. because the debt cannot be apportioned, but otherwise, he may, saith the Book: yet Quae. if he do take upon him the Executorship, and have goods sufficient to pay all. If a debt be recovered against one who dyeth before execution sued, 7. Hen. 4. f. 31. leaving goods sufficient to satisfy; See Bro. Exe. ● 24 now shall not the Land descended to the Heir, be charged therewith, nor by like reason, any land conveyed after Judgement. See a good difference where land is conveyed, Co. l. 3. f. 90. 91. upon condition of payment to the Vend or his Heirs or assigns, To like purpose see more, Litl. f. 77. b. 2. Eliz. Dy. 281. Blow. come. 291. and he dyeth before the time, and where it is to be paid to the Vendee his Heirs or Assigns, and he dyeth; in the first case, payment shall be to the Executors, but not in the other. What things pertain to the Heir, and what to the Executor is before showed. 21. Hen. 7. 4. As for Frowickes' opinion, that where goods be mortgaged upon condition, that if the Heir or Executor pay, etc. here if the Heir make payment, he should have the Goods: I see not how that can be. A Directory for the following Chapter. A. All as but one represent the Testators person, and must join and be joined in suit, & e contra. B. Where one alone must answer suit; and how. C. When they differ in Plea, the best shall be taken, but one may confess alone. D. One aswell as all, hath, may give assent or release the whole. E. One cannot give nor release to another, nor divide F. The possession of one is the possession of all, to what purpose. G. If the survivor die Intestate, the Testator is intestate, though some other Exec. left an Executor. H. Included in the person of the Testator, and represents it. Is his Assignee; all one, & e contra. I. What change by death of the Testator, touching proceeding in suit. K. Proceed to or in Execution, where without Scire fac. M. Whether the Executor stand in his own quality or his Testators. N. Where one alone may sue. O. In suit for them such as will not join shall be severed, and th'other may sue and prosecute alone: consequents inde. P. Death of one Executor, Plaintiff or Defendant; where abates Writ. CHAP. IX. How Executors stand between themselves, and in representation of, or relation to the Testator, As his Assignee or Deputy, or as the same person with him, and where and to what purpose, as other persons. FIrst, A all of them do represent the person of the Testator, Are as one person; therefore cannot plead several pleas 〈◊〉 abatement. 3●, H. 6. 17. 9▪ H. 6. f. 44. 38. E. 3. 9▪ and therefore must they all join in suit against others, and in suit by others they must be all made defendants, or at least so many of them as do Administer: Bro. Ex. 13. for though the Executors themselves must take notice by the Will, Br●. Ex. 20, 21. how many Executors be, and must frame their suit accordingly; Therefore one Executor sued, i● he plead that there is another Executor not sued, must plead that he did administer, 9 H. 6. Creditors and strangers need not take notice of any more than do Administer, and Execute the Office of Executors. 44. Bro. 13. 33. H. 6. 38. ●. ●. 20. For this reason, as I take it, in the time of King Edward the 3. where two Executors were of a term, 32. E. 3. quid jur. 〈◊〉. 5. and the reversion was granted by Fine, mentioning but one termor, and thereupon a Quid juris clamat, accordingly brought against that one Executor, this was held good enough, though the other Executor was not named in the Suit; belike, because that one (who indeed was the Testators Wife) did only occupy the Land, and take the profits thereof; for else since all the Executors do represent the Testators person, all must have been named. Therefore did the Judges resolve in the time of Henry. ●3. H. 4 Aid. ●86 the 4. that where a Lessee for years made two Executors, and one of them was distrained by the Lord for Rent, who avowed upon the Lessor, that Executor should have aid of his fellow Executor, A to the end that both might have aid of the Lessor, which one alone could not. And upon this reason, viz. that the Executors represent the person of their Testator, 9 Ed 3. cap. 3. as one person (for so speaks the Parliament) It was enacted in time of Edward the 3. that the Executors, though never so many, shall have but one essoign, neither before appearance nor after, A because their Testator whose person they represent, could have had no more. It is further also enacted by the said Statute, that where two or three Executors or more be, they being sued in an action of debt, though all do not appear; yet such one of them or more as do, B or doth appear at the Grand distress, But not if he appear at the summons 1. E. 4. 1. 14. H. 4. f. 11. shall answer alone without his companions. And this Statute hath been taken by equity in three respects. But the Plaintiff must declare against all. He need not but he may admit another to appear, and plead after. 7. H. 4. 12. First, touching the persons: that it shall extend, not to Executors only, but also to Executors of Executors, yea to Administrators also, But Process must be continued against all. 7. H. 6. 35. though the Statute speak only of Executors. Secondly, Executors of Executors by equity. 39 H. 6. 45. Bro. Exec. 99▪ touching the actions; whereas the Statute speaks only of the Action of debt, it is taken by equity to extend to other actions, 28. H. 6. f. 4. as the Writ de rationabili par●e bonorum, and detinue, 14. H. 4. 23, 24. So negatively. yet perhaps, this latter action will be said not to be maintaineable against Executors, 21. H. 6. f. 1. for their Testators act, 28 H. 6. f. 4. but for their own only; 3. H. 6. 351. But we yet are not come so far as to determine what is maintaineable; 39 E. 3. 5. There it is not merely as Executors, it is out of the stat▪ 11. H. 4. ● 3. As if in deb. & de●. but whether before all the Executors do appear, he or they which have appeared, shall be put to answer; B and so to bring it to decision; whether the action be maintaineable, Conte. 47. E. 3. 22▪ or not. I think also that in the action of covenant, So 7. E. 4. 20, 21▪ and all other actions against Executors, 3. H. 4. 20 Ins●●. fac. upon a pardon by defenda●▪ outlawed at their suit. as Executors, he which appeareth, must answer without his companions, 47. E. 3. 22. though the greater opinion in the Quadragesimes were contrary touching the action of Covenant. Only 〈…〉 in the Affirmative. But as for the sub paena against Executors, which is to make them to answer to a suit in equity; 8. E. 4. 5. that hath been temp. E. 4. taken to be out of the reach and intent of the Statute. So also of the Latitat in the King's bench, as was held in the same King's time, 9 E. 4. 12. 13. except all the Executors, making up the whole representative body of the Testator, be in the custody of the Marshal, B one or more of them who are there shall not be enforced to answer; 20. vel. 21. Jac regi●. and so was it also lately held in the King's Bench, where Master Justice Houghton gave an excellent reason, this case is out of the said Statute, viz. for that this Writ doth not mention any debt, nor name the Defendants Executors. Thirdly, and lastly, that Statute is extended by equity to other Writs or Process; for where the Statute speaks only of the Grand distress, B and the Executors appearing thereupon; It hath been many times ruled, that when he or they appear upon the Attatchment, 1. E. 4. 1. Capias, or Exigent, 40. E. ●. 1. answer must be, though the rest appear not; for so the word Distress is taken for all compulsary means or enforcement of appearance. But where the Statute reacheth not, viz. when the Process is determined against one or more, as by Outlawry, etc. there the rest must answer by the rules of the Common Law; B except it be in the case of Husband and Wife Executor, for there the Wife cannot answer without her Husband, nor doubtless can he without her, where she and not he is Executor; 11. H. 4. 63. but where both be Executors, C there he may answer without her, Or if but one appear. 28. H. 6. f. 364. judgement against all. but not she without him. When Executors as Defendants have appeared, if any one of them will confess the Action, See 9 E, 4. 12, 13, 14. where B. who is not Executor is jointly sued with A, & B. confesseth. 2● H. 7. 25. Yet 7. E. 4. 8. They may severe in pleas not dilatory C 7. H. 6. f. 6. per Cottesi●●e. this binds and concludes the rest; but if one will plead one plea, and the other another, that say some, shall be received which is best for the Testators state; so where they sue, such as will not prosecute, shall be severed, and the rest without them may proceed; and in like manner where they pray to be received to defend their term, If they recover and one of them prays a cap. ad sat. and the other a Fires. fac. the first as best shall be granted 3. H. 4. 10. Bro. 44, So where the defendant Outlawed at the suit of two Executors, & upon the Se●. fac. after his pardon but one appears. 21. H. 7. 25. D 9 E. 4. 12. 14. and one of them after makes default; it shall not be the default of all, but the rest, or he, if it be but one who appears shall be received to uphold the defence of the term, Thirdly, so where they plead a release to the Testator or themselves, one after making default, this shall not be, nor make a total default in the Executors, to induce a judgement or condemnation against them. Yet in truth each Executor hath the whole of the Testators Goods and Chattels, 21. E. 3. 13. be they Real or Personal, 27. H. 8. 21. 22. and each may sell or give the whole. One of them cannot give nor release to the other his Interest, D E and if he do, it is void, and he who releaseth shall still have as much interest, as he to whom he released, because each had the whole before, upon this reason long since, where one of the two Executors released but his part of a debt, C it was held that the whole was discharged: and so if one Executor grant his part of the Testators Goods, all passeth, and nothing is left to the other, for that each hath the whole, If an horse come to four Executors, each hath an horse, and yet all four have but one. and there be no parts or moieties, between Executors. Therefore, also though a lease for a thousand years, of a thousand acres of Land come to two Executors or more, 27. H. 8. 21. 22. no partition or division can be made between them, E because it is not between them, as between joint Lessees of Land where each hath but a moiety in interest though possession of or through the whole. Amidst Executors, each hath the whole, D and therefore if he grant his part he grants the whole. But one Executor may demise or grant the moiety of the Land for the whole term, and so may the other do, and this way they may settle in friends or others trusted for them, a moiety for each; either in several or undivided; E but one of them cannot make a lease to the other of any part, for he had the whole, nor can one sue the other as Executor, yet if the Testator devise to one of his Executors, all his goods after such debts and Lega●ves satisfied, ●. H. 7. 5. there after those satisfied, that Executor may take the Goods and maintain an action of Trespass against the other Executor, if he take them from him, and consequently an Action of Detinue, for keeping or detaining them: but this is as Legatee, his own assent perfecting the Legacy. The possession of one Executor, F is the possession of all the rest; so, as if one appearing to a Suit, and the other making default, in whose hands all the goods be which are not administered, if, I say, here he that appears, pleads that he hath nothing in his hands, this shall be found against him; for whatsoever any of the co-executors hath, 14. H. 4. 12. Bro. 12. he also hath, F and is in his possession, and so shall the Creditor recover, and have judgement to be satisfied out of the Testators goods, as in his hands. All must sae. 19 H, 6. 65. conte. And therefore if goods be taken from one, 24. E. 3. 40. & 42. E. 3. 26. It may be in his name only from whom taken; nor need he be named Executor Bro. Ex. 31. 39 H. 6. 4●. all may maintain an Action of Trespass thereupon; for the possession of one is the possession of all. But the possession of one shall not be, so the possession of all, as to charge the others own goods whereof more elsewhere. F Where two Executors be made, G the one making a Will and executors, and dying; if the other die after intestate; now shall not the Executor of him who first died be Executor to the first Testator, 32. H. 8. Bro. 〈◊〉 149. but he is dead intestate, 39 H. 6. 45. because the surviving Executor is so dead; and in him the Executorship was wholly, and solely settled by the death of his fellow before him: So Administration, de b●nis non admin. shall be committed. The Executors, or Executor, if but one so represents the person of his Testator, Co. lib. 5. ●. 97. that he is in Law his Assignee by the very making of him Executor; H so as if one covenant to make a Lease to I. S. and his Assigns by such a time, Chapman & Dalton● case. Plo●. and I. S. dieth before that time, and before the Lease made; now must the Lease be made to his Executors as his Assign, representing his person; so also in a condition to pay to the Feoffor or his Assignee, yet a Lease to A. and his Assigns during the life of B. shall not go to the Executors of A. Sir Edward Phitt●●t case, Co lib. ●. f, 80. So where in a general pardon by Parliament, there is an exception of persons outlawed after judgement, A unto the person so outlawed, So where the stat. of W. 1. gives time for proof to him whose goods were wrested. His Executors may do it, if he die before the time. Co. l. 5. 107. b. shall satisfy the Creditor, who hath outlawed him. If the Outlaw die before this done, his Executor as representing his person, may make satisfaction, and so make the benefit of the pardon to extend to his Testator, for saving his goods, as if himself had satisfied his Creditor, Co. lib. 6. f. 80. though he left him unsatisfied, when he left the world, Also Executors shall have restitution of stolen goods, and a Writ of Error; yet the Statute speaks but of the party. & d. 'em obiit extremum. Yet where A. sold Land to B. upon Proviso, that if he paid ●o B. his heirs, or assigns, etc. B. died, A. paid at the day to his Executor, and it was doubted that it was not good, H for the word Assignee could not reach to him being no Assignee of the Land: 2▪ 〈◊〉. Dy. 100L. and where the Executor brought an action of account upon a receipt by the hands of the Testator; Conte. where to pay to A. the Feoffer his heir or assign. Co. lib. 5. f. 97. the Defendant could not be admitted to wage his Law; 2 Eli. Dy. 18●. for that this was held a receipt, per autermains; yet it is clear, that if one by Bond or Covenant tie himself to pay such a sum▪ at such a day, not mentioning his Executor at all; yet is the Executor bound, as included in the name or person of the Testator. And where the Statute 23. 3. Eliz. Dy. 201. of Henry the eight, giveth the Writ of attaint (in the course there mentioned) against the party that had judgement, it lieth against his Executors if he be dead; H but thereof another reason is given. 27. H. 8. 16. where a man was bound, that he would not sue upon such a Bond, and he died, and his Executor sued; this was held to be no forfeiture of the Bond. So where one was bound to pay ten pound within a month after request made to him, M. 15, & 16. El. and he died before request; I it sufficed not to make it to the Executor, 34. El. vel circite Titherley & Le●cor Walsh. in ba. reg. as Manwood said. It was likewise held that the warrant of Attorney put in for the Plaintiff in debt, I sufficeth not for his Executor to bring a Scir● Fac. upon the judgement. And if Executors sue execution upon a Statute in the name of a Conusee, 36. H▪ 8. Bro. stat. Merchant. 43. as if he were alive, K this is void, 2. R. 3. 8. and they may sue out new extent, and this they may do without any Scire facias, H I as well as the Conusee might, if he had been alive. 15. H. 7. 14. But by Hussey Justice, F if the Conusor in a Statute staple be returned dead by the Sheriff upon the extent; 15. E. 3● Respond. 1. conte, upon a Stat. Marchant. a Scire fac. must be sued out before extent proceed; and upon a judgement had, if the recoverer die before execution, his Executor cannot as himself might, K sue out execution without a Sci. fac. as is there said. ●●nte No●●●●. 207. upon a Recogniz. Yet if after a Capias ad sat. awarded, I. the Plaintiff die before it be executed, the Sheriff may proceed to the taking of the party, and is not subject to any action of false imprisonment, nay, if he suffer him to escape he is chargeable, H as temp. Elizabeth it was resolved upon the motion of Anderson; ●0. Eliz. tot. 31. in ba. reg. but withal it was held that relief might be by Audita querela. Like resolution was in the King's Bench, After some doubt by Wray, and the other Judges, where the Defendant died after a Fieri fac. awarded, and before it was executed, that the Sheriff might proceed upon the Goods in the hands of the Executors. But if the Defendant in an action of debt, upon a bond plead a tender at the time and place of payment, I. and tenders the money in Court, where it rests and then he dies; now shall not the Plaintiff, have this money, because the property thereof is changed, and become the Executors, as was held in the Common pleas, P but he is put to a new suit against the Executor. 32. Eliz. vel circite. Yet where judgement is once given in a Writ of Partition, I for a termer, or in a Writ of Account, if the Plaintiff die before the second judgement needful in both cases, Pas. 28. Eliz. the Executor is not put to a new suit, but may proceed by Sci. Fac. upon the former judgement, as the Lord Anderson held upon the motion of Fenner Serjeant. Though before we found the Executor not in points penal, H all one with the Testator, yet in points beneficial, the Testator includes him in some cases, as where an Abbot granted to his Lessee to take Estovers in another ground, it was held that his Executor though not named should enjoy this, during the term as well as himself should have done. And whereas the Stat. 23. of H. the 8. gives costs to a Defendant against a Plaintiff, suing for a wrong, or breach of promise, or the like, done to the Plaintiff against whom it passeth by verdict or nonsuit; Tri●. 36. Eliz. in ba. r●g. it hath been resolved that an Executor suing upon such wrong o● breach, H M of contract to his Testator made should not pay costs because he is another person than the Testator; and so is it usual in experience. But if in such suit, the Attorney of the Executor mis-behave himself towards him, Pa. 41. Eli. in come. ba● and for this the Executor sueth him, here if it pass against him in mannenr as aforesaid, he shall pay costs, because this was a suit for a wrong done to himself. If A. recover a debt as Executor of I. S. and makes B. his Executor, I and die before execution sued, B. is not put to new suit, but may have execution upon that Judgement: But if A. or B. died Intestate, 〈◊〉 2●▪ H. ●. now could none as Administrator to either of them, nor as Administrator of I. S. have execution of this Judgement; for the former hath no interest in any thing pertaining to I. S. and the latter cometh to title above the judgement, viz. as immediate administrator to I. S. who is now dead intestate: and derives no title from the Executor, who recovered. If a Conusee have a Certificate into them Chancery, 2. El● Dy. 180. upon a Statute, and then dies, before extent taken out, I his Executor is put to a new Certificate, and for obtaining of it, must make Affidavit, that no extent hath yet been taken out. If an Alien join with his Wife, M who is Executor in a suit for debt, and it cometh to Issue, he shall not have trial per medietatem alienig. or Linguae as should be if he otherwise were party to a trial, as was held in the case of Doctor julio. Yet if a noble man sue as Executor to another, not noble, he shall for his nonsuite be amerced five pound, as if he sued in his own right, as was conceived 21. E. 4. 77. By the same rule and reason doubtless a Noble man sued as Executor, shall not be arrested, nor shall any Capias be awarded against him for not appearing. And if any trial shall be of any issue, there shall be two Knights of the Jury, as in other cases where a peer is party. Likewise where the Wife is to have her convenient apparel, whereof the Executor must not bereave her; If she be a noble woman, it shall be answerable to her degree If one Executor or only sell goods of the Testator, A he alone may maintain an Action of debt for the money. 38. E. 3. f 9 So if goods be taken out of the possession of one Executor, N he alone may maintain an action, and that without naming himself Executor. Some touch hath been before of Summons, P and severance, whereabout be this added. O 3. H. 7. 1. & 5. E. 2. Fitz. bre. 802 Conte, 38 E. ●13. & 20. E. 3. tit. acco●nt. 78. If one Executor will not, or cannot join in suit with the other, so as he is summoned and severed, now by his death, after the suit is not abated, 16. Ed. 2. Fitzh. 111. yet if he live till judgement, he may sue execution, say other Books, 13. Ed. 3. Fi●zh. Exec. 9 11. R. 2. Privilege 2. yet Que. of that for he cannot acknowledge satisfaction, as hath been since resolved. Mich. 14. & 15. Eliz. Dy. 319. And the reason thereof being because he is no party to the judgement, by the same reason can he not sue exencution upon it, for how can he have execution for whom there is no judgement given, now the recovery is only in the name of the other Executor, yea, by the said last Book, it seems that after judgement had, he cannot release the debt, because it is now altered in nature, and turned in rem judicatam, though at any time before judgement he might have released it as both that last book saith, and the two precedent temp. Ed. 3. Rich. 2. yea in an action of account, after judgement had, that the Defendant shall account, the release of him severed, is a good discharge to the Defendant, as was resolved 48. Ed. 3. 14, 15. but this is not a plenary judgement, for nothing is recovered thereby but another judgement is to be had after the account, which may be against the Plaintiff, so as this release came before any debt or duty adjudged. What if the Defendant be had in execution at the suit of the Executor, who prosecutes it, and escapeth; whether may the severed Executor discharge the Sheriff or Jailor by a Release, I think he may not. By that above it is plain, 〈◊〉 that if any one of the Executors Plaintiffs die, the Writ is abated, only where he so dying was before severed; ●. H. 4. f. 14. opinions have been different, as above appears. So also is it, if one of the Defendants Execntors die. Yea, if the Plaintiff Creditor sue A. B. & C. as Execu●ors, where only A, and B. are Executors, there by the death of C. the Writ abates, or falls to the ground, P yet A. and B. as I think might have pleaded in abatement, 9 E. 4. 1●. Bro. 34. that they only were executors, traversing that C. was not Executor, but the Book doth not so resolve. See 46. E 3 f. 9 10. As A. and B. above might admit that Writ against them and C. A So if the Writ or sui●e had been against A. only, and he so admit it not pleading in abatement, the recovery against him alone is good 9 E. 4. 12. One that is Outlawed or attainted in his own person, 21. H▪ 6. 30▪ may yet sue as Executor, M because this suit is in another's right, 21. E. 4. 49. 69. viz. the Testators: 42. E. 3. 13. But he that is excommunicate cannot proceed in suit as Executor, 14. H. 6. 14, 15. because none can converse with him without being excommunicate, 3. H. 6. 40. Lit●●. 44. Co. lib. 81. 69. 11. R. 2. Excom. 25. as a Book says. Yet doth not this excommunication pleaded, abate or overthrow the suit, but make that the Defendant may stay from answering his suit, until the Plaintiff be absolved and discharged from his excommunication. CHAP. X. Of the Possession of Executors, or their actual Having. 1. What shall be said, so to come to their hands, as to charge them. 2. What shall be such a getting, or going from them, as to excuse them. WE have before considered what things shall come to Executors, and being come shall be Assets in their hands. Now for that it is said in Reeds Case, that an Executor shall not be charged with, Co. lib. 5. or in respect of any other goods than those which come to his hands after his taking upon him the charge of the Executorship. Let us now examine what shall be said, and accounted such a full and complete coming to the hands of Executors, as shall make them within the reach and charge of Creditors, and Legatees, viz. For the payment of debts and Legacies. As touching debts due to the Testator, it hath before been showed, that until Judgement and execution had; they be not Assets in the Executors hands. Now then, as touching other goods or chattels possessory, which are of two kinds, viz. real, and personal: Let us put the Case thus. The Testator at the time of his death hath a flock of sheep in Comberland, Corn in the Barns in Cornwall, Bullocks in Wales; fat Oxen in Buck●sh●re; Money, Householdstuff, and Plate in London, a Lease for years in Norfolk, and his Executor dwelled at Coventry, viz. far from all these places, what kind of possession shall the Law judge this Executor to have in every of these, instantly upon the Testators death, and before he come where any of the things be, either to see or seize upon them● In all the particulars above mentioned the Law is all one, except the Case of the Lease for years, which if it be of Land (as is most usual) then because it is a settled and immovable thing; the Law doth not reach to it the foot of the Executor, P●●k. C. b. to put him in actual possession, for Possessio est quasi pedi● positio) until himself, or some for him do actually enter thereupon. Nor indeed need the Law help o● supply the want of actual possession in this Case, as in the case of moveables; since Land cannot be carried away as goods may, and therefore is not subject to purloining or imbesilment as moveables are. But if the Lease for years, were of Tithes, the Executor, though in never so remote a place from them, shall be instantly upon the se●ting out thereo● in actual possession of them, 45. ●●. ●7. so as he may maintain an action of Trespass against any stranger which shall take the Tithes set ou●, 21. H. 6. 43. though he, nor any for him did ever before possess any of the said Tithes, or came near unto them. But if the case were of a Lease for years of a Rectory consisting not only of Tithes, but also of Glebe Lands, into which entry may be made, as also Livery of season in it, than it may perhaps be some question, whether such an actual possession in Tithes, shall be given by the Law to an Executor, neglecting to enter or not entrying into the Glebe Land. And so I leave the consideration of Chattels Real, Touching things Personal, in which the Executor hath such an actual possession, ●. E. 4. 50. presently upon the Testators death, ●low. come. 281. as that he may maintain an action of Trespass against any stranger taking them away or spoiling them, 3●. H. 6. 13. though he nor any for him ever came near them: 14. H. 8. 〈◊〉. whether yet this shall be such a possession in the Executors, and such a coming of these Goods to their hands, as to charge them with payment of debts and Legacies, yea to make their own Goods liable instead of these, is a point worthy of consideration. And doubtless, this throughly sifted, will prove a case mischievous, whether way soever the Law be taken, for first it must be admitted that without the Executors laying his hands actually and particularly upon the Goods in the House or Fields of the Testator, whether the Executor hath resorted, he shall be said so in possession, as to stand liable unto the Creditors, so far as they extend in value, though after, others purloin or imbecile them. Now than if distance of place shall make difference, where shall be the bound and limit of that distance, and if the Executor may come at a strangers taking or possessing of the Goods, it is mischievous to Creditors. On the other side, if it shall be said upon the Executors to answer for all the Goods whereof the Testator died possessed, it will be mischievous for them and deter them from taking Executorship upon them, since much purloining, may be even of money, jewels, and Goods by Servants and others, about the Testator, or where these things be. I think therefore, that if without any fraud, collusion, or voluntary conniving on the part of the Executors, they be prevented by others, of laying hold on the Testators Goods, so as that they may dispose of them; especially, if it cannot be known by whom they are so purloined, and imbesilled, or if they be persons fled, or insolvent, that then they shall not stand upon their score, as Goods come to their hands, in respect whereof, Creditors or Legatees shall draw so much from them, even out of their own Goods, as in other cases where they have, no such excuse shall be. And of this mind I the rather am, 33. H. 6. c p. 1. because I find the whole Realm in Parliament, takeing notice of such prevention of Executors, coming to the Goods of their Testator, by the wrongful act and imbesilment of others, without any default in themselves. And in this Case the Parliament hath given special remedy, viz. that Writs shall be directed to Sheriffs, to make open Proclamation for the appearance of the parties delinquent in the King's Bench, at the day limited, and in default thereof they shall be attainted there of felony, the Writ being returned executed, viz. Proclamation made. But note that this Proclamation is to be made two Market days, within twelve days next after the Delivery of the Writ, and the last Proclamation must be fifteen days before the day of appearance. And these Proclamations must be made in such Cities, Burrowes, or Places (saith the Statute) not expressing what is meant by the word such, and therefore, meaning doubtless those in which the act or offence is committed. So that if the fact be not committed within the limits of some City, Burrow, or Market Town, no remedy is to be had by the Statute; for that the Proclamation is to be made upon Market days, in the place where, etc. Now besides other Places, even some Burrowes, viz. Towns, sending Burgesses to the Parliament, have no Markets, and so are no Places within the Act. Also two Executors must require this Writ, therefore where there is but one Executor, no relief is given by this Law, for it is penal, making felony, and therefore shall not be extended by equity beyond the Words. Lastly, it extends but to the Executors of Lords and Persons of good degree, and only to the Trespassing servants of such Persons, not to other strangers, purloining the Goods. But now who shall be said to be Persons of good degree, not being Lords, I will not much labour to decide, the rather because I have not heard, nor read, to my remembrance, of any Action brought upon this Statute, but I think that good degree must stay either at a Knight, being the lowest dignity, or at a Gentleman, being a degree of Worship, as elsewhere is showed, and not stoop any lower. And the said Statute seems in some sort to imply an opinion this way, which I incline, in that it expresseth this purloining to be an impediment of the execution of the Will, whereas if the Executors sh●ll answer and make good to Creditors and Legatees, out of their own state and Goods, for these imbesilled, the execution of the Will is not hindered, but the Executors are damnifyed in their own private va●ue, yet it may be said on the other side, that some things given in specie by the Will, such a piece of Plate, such a Furniture of a bed or Chamber, such a Jewel may be purloined, so that the Legatees can never have them, and consequently the execution of the Will be hindered, though some recompense be made by the Executors, but how these Legatees shall recover recompense in such cases; for that Legacies are not to be recovered by Suit at the Common Law, I must leave to the Professors of the Common or Civil Law to inform. But if the Executor be of secret assent to this imbesilment, whereof even the forbearance to sue for the recovery of the things, or the value of them in damages, if known where they, or the imbesillers be, is a shrewd evidence, or proof, Then shall the Executor be adjudged an haver of them, and so stand charged as having them, for Propossessore habetur qui dolo desi●t possidere. And if in any Case the taker by prevention from the Executor before his knowledge perhaps, of the Testators death, or at least, before his possibility of repair to the place, where the goods were, to put them in sure Custody; if I say, such actor keep these goods from falling upon the shoulders of the Executor, they shall surely fall upon himself, and make him chargeable at the Creditors suit, as an Executor of his own wrong. Of Goods lost by or (But put we the case) gotten from Executors (for thereunto shall be our next step) that Goods come fully into Executors possession and hands, but be again lost or gotten from them without any default in them; Shall they yet stand answerable out of their own Estates for them? Surely hereabout two distinctions mustbe made as I take it. The first whereof I derive from our learning touching escapes of persons taken in Execution, and imprisoned, if such be rescued by Alien enemies, 33. H. 6. 1. the Sheriff or Gaoler shall not answer out of his own Goods for this debt, 16. E. 4. 2. 3. otherwise if it be done by Subjects, 7. Eliz. Dy. 24●. against whom remedy is to be had by the course of Justice: and so should I think it to be touching Executors, viz. that if enemies landing (as near the Sea Coast may easily, and often happen) shall take away cattle, or Goods from an Executor, hereby he shall be excused, chose ordinarily, if the ereption or direption, be by subjects known and actionable. Another difference I shall think may probably be taken from the rules of our learning touching Bailement. If A. deliver Goods to B, to keep as his own, or genererally, viz. without any special undertaking by B. to keep them safely, and without any money or other valuable consideration, given for the safe custody; Vide ●9. As. p. 28. 8. E. 2. Fitz. Here if B. be robbed of them, he shall not make satisfaction to A. for them; 〈◊〉. 59 9 E. 4. 90. 13. H. 7. 4. and so if they be stolen from a Servant, Co. lib. 4. f. 83, 84 or Factor. But if they be taken away by a known Trespasser, not feloniously, some opinion hath been, that the Keeper shall make recompense, because he hath remedy for recompense, or satisfaction from the trespasser, yet of this latter I should doubt, because A. himself as well as B. may have this Action for damages against the Trespasser. Now an Executor is of the nature of such one having the custody of another man's Goods, and I have seen in a manuscript entire, the Writ of Trespasser by the Executor, 〈…〉. expressing goods of the Testator in the Custody of the Executor to be taken from him; therefore me thinks he should no otherwise be charged then B. to whom Goods were as above is said delivered to be kept. For the Executor haply shall have no benefit nor advantage by the Executorship, all the Goods not sufficing perhaps to pay debts, and Legacies, which is the state we most think of, viz. where Goods want to pay debts, and Legacies, for where there wants not, the question need not be made. Yet a servant or Factor, who hath wages for his service, is not thereby made liable to satisfy for things in his custody stolen, because he hath not for this particular custody, any compensation, so of an Executor, if perhaps benefit might accrue to him by the Executorship, as happily the discharge of a debt owing by himself, etc. Other Cases there be, wherein the Executor will stand more clearly discharged. As if the Testator left a Lease for years, state by extent, wardship, or other Goods whereto he had but a defesible title, and they be evicted after his death. So if he left a Ship at the Sea with much Goods and Merchandises, which are drowned in the return, never arriving in safety. So also if he left a flock of sheep, tainted with the rot, which die shortly after him, in none of these three Cases doubtless shall the loss fall upon the Executor. But to put a Case of more doubt, what if a Lease for years come to an Executor, subject to a Condition for payment of Rent, or a sum in gross, and the Executor fails in payment, whether shall this loss fall upon the Executor, to be made good to Creditors, or Legatees out of his own substance, or not? To this I must answer by this distinction, viz. If the Executor had taken the profits of this Land so long as to furnish him with money for this payment, or if he had other Goods of his Testators in his hands to supply the payment, then is it his default that the money is not paid, and he must bear the smart thereof: otherwise not, for he is not bound to make payment out of his own Goods, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. yet is he a sullen and unkind Executor who will not so do, when as he may repay and satisfy himself by the profits thereof after. Like Law if the Executor suffer a bond of a hundred pound to be forfeit, for not paying of fifty pound, having sufficient in his hands. So also of a Recognizance, Statute, or Judgement, defeazansed upon payment of a less Sum; yea, a less doubt of all these Cases, then of the forfeiture of the Lease for years, for haply the Executor had time to have sold the Lease, and made money thereof, towards the payment of Debts, the omission and neglect whereof may be imputed unto him as a default justly occasioning recompense to be by the Law required from him. But perhaps he may excuse himself that he could not find a Chapman who would give him to the value thereof: hereunto yet reason can easily reply, that it had been much better to have sold it under the value, then to have lost the whole value, by exposing or abandoning it to a total forfeiture. CHAP. XI. How far, and where an Executor having Assets is chargeable or liable to Action. HAving considered what things shall come to Executors and be Assets in their hands, for the performance of the Will. Let us now consider what thing the Executor is bound to pay, satisfy, or perform, and what not, where he is chargeable, and where not, this being admitted, that he hath Assets, viz. sufficient wherewith to perform. Here we will consider of these parts. 1. Of Debts by Specialty or Record. 2. Debts or duties by Contract without Specialty. 3. Debts without either Contract or Specialty. 4. Covenants by Deed or Specialty. 5. Wrongs done by the Testators. TOuching Debts by Specialty, which are the most usual and common obligements, it will not be impertinent to give a little light touching the validity of a Specialty, and the extent of it to Executors. The most doubt will arise upon Bills, and such Writings, Obligatory made, not by Scriveners, nor Clerks, in common form, but by others, otherwise for haste, or through simplicity. Thus long since we find a Writing made by A. to B. Memorand. 21. E. 4. 22. that I have received of B. ten pound, which I promise to pay, etc. This being sealed and delivered, was held a good Obligation by Brian and Catesby. So if the words had been only, I shall pay to B. ten pound, and whether such words or the like, as Covenant, or Grant to pay, 29. R. 2. F. D●t. 166. be in the form of a Bill or Bond, or in an Indenture or Articles, it is a sufficient ground for an Action of debt. 9 H. 6, 7. 2. H. 4. 8. 23. Eli. M. 5. And though it should be miswritten Wigint. for vigint. or fi●teene for fifteen, yet shall it be favourably construed, and held a good specialty of debt, as hath been resolved in these and like cases; and so also notwithstanding, false Latin in the Obligation, 9 H. 7. 16. or the plural number for the singular number, 2. H. 4. 8. or words of repugnancy or nonsense, yet if there be words whereby it appears that A. 28. H. 8. Dyer. 22 is a debtor to B. and it be sealed and delivered, it is a good writing Obligatory; yea though it want the words of conclusion, 28. H. 8. Dy. 19 & 22. viz. in witness whereof as the Lord Dyer reports, to have been resolved, although the contrary were held in four several Kings times before as our Books show. 40. E. 3. 1. 7. H. 7. 14. 8. H. 6. 36. Now any such Writing Obligatory doth determine or drown any duty by Contract, 22. H. 6. 15. because Specialty is of a higher nature, 21, E. 4. 81. So as if A. and B. do bargain with C. to pay him a hundred proved for Corn or other thing, 3. H. 4. 17. and after C. take some such Writing Obligatory, 11. H. 4. 7●. as aforesaid of A. now by this is B. discharged of the debt, because he stood charged only by the Contract, which is extinguished by the said Specialty. As for the extent and operation of these Specialties, So reservation of rent, grant of annuity. to, and upon Executors, we must know that an Executor doth so represent the person of the Testator, 28. H. 8. Dy. 14. & 22. and is so included in him, as that every Bond or Covenant by the Testator made for payment of money, or the like, reacheth to the Executor, although he be not named, viz. that he doth not Covenant for, 47. E. 3. 22. nor bind him and his Executors by express words (and yet the Heir not named is not bound, 32. H. 6. 32, 10, H. 7. 18. though there be never so great Assets, or Land descend unto him.) Now touching debts upon Record, much need not to be said, No mention of Executor in the judgement, yet he charged. (except of those by Statute Marchant) for to debts and damages already recovered against the Testator, and to debts by Recognizance the Executors liableness, is somewhat clear and conspicuous. Yet other inferior debts upon Record, may fitly be thought of, as Issues forfeited, Fines imposed by Justices, at Westmin. or at Assizes, Quarter Sessions, Commissions of Sewers of Bankrupts, By Stewards in Leetes, or the like, for all these are debts of Record, which Executors stand charged withal. So also if the Testator were before Auditors found in Arrearages of Account, 9 H. 6. f. 11. being a Bailie, 11. H. 4. 64. 92. or receiver: For these Auditors are by Statute Judges of Record, Otherwise of a Garden in Soccage, he is out of the stat. w. 2. cap. 11 ut 〈◊〉. C●. lib. 10. 103. but if the Account were made only before the party to whom the Arrearages pertained, or but before one Auditor only, it is out of the Statute, which speaks of Accounts before Auditors in the plural number. Therefore the Executor not chargeable, because the Testator might wage his Law in those cases, not in the former. And whereas exception was before made of a debt by Statute Marchant, it was by reason that the Lord Bro. tells us that if the conusor in that case be returned dead no remedy appeareth for the Conusee to have execution of the Goods of the Conusor, 36. H. ●. 〈◊〉. but only of his Lands. 〈◊〉. Ma●. 43 If this should be thus, it were a very mischievous case: for many bound in Statutes have no Lands but Leases and goods of great value, and if by their death, their Goods and Chattels should be set free from this Statute, and the Creditor without remedy, the Law were very defective: and it were so much the more strange in this Case, because the Statutes of Acto●, Burnell, and Mercatoribus, seem to pitch principally upon Goods, and to tend unto assurance between Merchants, who usually are not Landed men. But that the Law doth give remedy in such Case, as well against the Goods as Lands of the deceased Conusor appears by the resolution of late, made in what Order, and Precedence, Statutes are to be satisfied by Executors, as after we shall see. Of Debts by Contract without Deed, as Leases Paroll, etc. COntracts are of divers kinds, and we will begin with those in the realty, as most worthy. If therefore one be Lessee for years, or for life, without any Indenture or Deed, (as he may be) and his Rent being behind, 21. H. 6. 1. he dyeth, 44. E. 342. now is the Executor liable to the payment of this Rent, without any Specialty, for that his Testator, if he had been sued in his life time, 44. E. 3. 5. could not have waged his Law. But if the Less●e for years, 7. E. 3. 11. in his life time, sell or grant away his term or Lease, 14. H 7 4. pe● Keble vide 8. E. Dy. 247. although he still lie at the stake for the Rent, to grow due after, until the ●essor accept the Assignee for his Tenant, Yet if the Lessee die, his Executor shall not be charged for any Rent due, M. 32. & 3●. after the death of his Testator. But what if the Lessee do not Alien or assign his term, Eliz. in come. ●a. but die thereof possessed, and the Executor perceiving the Land not to be worth the Rent, Waiveth the same. Yet the Lessor will not enter thereinto, nor intermeddle therewith, whether may he yet charge the Executor with the Rent, 〈◊〉. & S●n. ●22. during the term? I answer that if he have assets, that is sufficient for payment of this and other debts, he cannot Waive this Lease, but shall be tied to answer this rent, though much more than the Land is worth, for the taking of the Lease is much of the nature of an Obligation to pay money; Yet because it is yearly Executory, the Executor may Waive it, in case his Testators estate will not supply and bear that loss. But what if there be assets to bear this yearly loss for some years, but not during the whole term? I think in this case the Executor must pay the Rent, so long as this Assets will hold out, and then must Waive the possession, giving notice to the Reversioner; and this I think he may do well enough notwithstanding his Occupation of the Land divers years after the Testators death, because that was not voluntary, but as of necessity; yet this I leave as a Quaere, to be well advised of with good counsel. Of contracts personal. Where the Testator might wage his Law there the Action lieth not against the Executor; 41. E. 3. 13. as hath been touched, 15 E. 4. 25. and therefore he is not chargeable in an action of debt upon a simple contract, Except by a ●●●minus in the Exchequer, for the King's debtor. Co. lib. 9 f. 98. So of accounts except for the King. as by reason of this or that to his Testator; yea though it were the Inheritance of Land, which was sold so as the sale were without Deed, or though by Deed, yet if no counterpart were under the hand of him to whom the sale was made. And the custom of London, M. 33. & 3●. El. in come, ba. By three judges, & 37. Eliz. By all, as I find in my report, but Co. lib. 5. f. 82. b. it is contrarily reported. to the contrary, viz. that an Action of debt should be maintained against Executors upon a contract was held void at least no Good plea against other Creditors that such a debt was recovered against the Executor, or paid by him, as was towards the latter end of the late Queen's time resolved, 3. Eliz. Dy. 196. Demurrer. though in the beginning of her time it was a demurrer. 9 E. 4. 51. 10. H. 7. 8. 15. E. 4. 16. Yea, though such a debt grew for the most necessary thing, 22. H. 6. 13. viz. meat and drink, 3●. H. 6. 186. which bindeth even an Infant to payment, There though a common hostile: or victualle●, trust his guest, he loseth his debt by his death. Co. 9 f. 87. b. yet will it not charge the Executor of a man of full age, but this is meant where the contract was only by Word, for where the Testator putteth his Seal to any Deed or Writing made upon such sale, this is more than a simple Contract, and taketh from the Vendee his wager of Law, and so chargeth the Executor. 12. H. 4. 21. But if the Testator seal but unto a tail or tally, But if the sum be also written on it, they are bound as by a Dee●. 8, li. 8. Dy. 23. ●. with scotches, expressing a de●t, this is no such Specialty as shall cha●ge Executors. Yet in some Cases without any seal at all, the Executor is chargeable. But although no Action of debt lieth against the Executor upon such a simple contract, yet may the Creditor, Slades' Case, 〈◊〉. lib. 4. in that case, maintain an Action upon the Case grounded, Co. l 9 87. 〈◊〉 Case. upon the assumption employed, though not expressed, as now standeth resolved by all the Judges of all Courts at Westminster, though heretofore there hath been much difference of opinion thereabout: And indeed thus the Executor is charged, in matter for a simple contract, though not in manner of a Debt; but as for breach of promise, making recompense in damages, instead of the debt. And the chief reason, for it is because the Testator could not have waged his Law in this action upon the case against himself, 〈…〉. though in debt he might. Where the Testator retaineth servants in Husbandry, or otherwise, and dyeth, there being wages due to these so retained, the Executor is liable to an action of debt for the same, by reason that the parties were compellable by Statute, 4. H. 6. 16 thus to serve, and therefore the Testator could not have waged his Law; but in case of Servants not compellable, as Waiters or Servingmen, as we call them, no action of debt lieth against the Executor, 11. H. 6. 48. 〈◊〉 for their wages, 2. H, 4. s. 14. Servitors in the war by contract. though against the Testator himself it doth: for the Contract is sufficient to charge him who made it. See of account after. Where Executors shall be charged without either Contract or Special●y. Where a Prisoner oweth money to a Jailor, 27. H. 6. 4. or Keeper of Prison for his diet, 1● E. 4. 16. Co. lib. 9 f. 87. b. or victuals, and dyeth, his Executor shall be chargeable for this debt, because it is for the Common wealth to have Prisoners kept, which cannot be without affording them victuals: Ne. n. br. 12 ●. a. Also, He must have a liberate also. where one hath a Patent, or Tally of the Exchequer, to receive money of some Customer, Receiver, or other Officer of the Crown, 27. H. 6. 4 b. and delivereth it to him, he then having money of the Kings in his hands, 1. H. 7. 17. if he pay not the same, 2 H. 7 8. 9 but die, Clerk of the Hamper. his Executor shall stand chargeable with the payment thereof. 10. H. 6. 24. 25. So for Arrearages of Account before Auditors, if more than one, but this is debt of Record in Law. So if any Lord of free Tenants, doth levy aid of them for the marriage of his eldest Daughter, N●. na br. 82 83. and he die before she be married, Westmin. 〈…〉 she may recover this money by an action of debt against his Executor, but this is by virtue of a Statute. There is a precedent in the Book of Entries of an Action of debt against the Executor of an Heir, Lib I●●r. 172. b. by which it seems that a man binding himself and his Heirs, and leaving Assets, the Heir taking the profit, becomes so a debtor, that his Executor shall be charged. P●g. ●rig. 141. a. And in the Register there is a Writ against the Executors of the Guardian of the Spiritualties of the Archbishop of York, for the debt of B. who died Intestate, and whose Goods came to the hands of the said Guardian, viz. the Dean of York. In allowance whereof there is a note added of the like Writ, ●●. ●. 2. 16. E. 2. brought in K. R. 2. his time, and that then a precedent was alleged of such a Writ in King Ed. 2. his time, against the Executors of an Ordinary, and that they were enforced to answer unto it. So is the opinion of Trew, 11. ●. 3. Fi●z. ●x. 77. in the time of Edward the third. But Ald. opposeth him. S●c Co. lib. Intr. 564. Such an action in Yerke shire, Also the Rationabile parte bonorum by custom in some places is maintaineable for the Wife and Children, against the Executor. But no action of account lieth against Executors, except for the King. More hereof, tit. wrong. Of Covenants charging Executors. WE have already touched upon Covenants in part, viz. where they be expressly for payment of money, showing them to be in Law bonds, that is, Writings Obligatory, whereupon an action of debt may be brought, circitr. Andrew's & Els●rigge 〈◊〉 33. Eliz. as well as an Action of Covenant, though the words of the Deed bear the sound and phrase of a Covenant. Yet in some Cases no action of debt lieth upon a Covenant to pay money: as if A. Covenant, that his Executor shall within a year, or such a time after his death, pay ten pound to B. now for that no action of debt was maintaineable against A. himself, it lieth not against his Executor, but only an action of Covenant, as was held in the late Queen's time. Pas. 33. Eliz. inter Bo●. & Austin in come. ba. Quare, if both be to be done by the covenanter viz. ten pound if not five such a day. So in 〈◊〉 Case. So if the Covenant be conditional, as thus, that if C. do not pay to B. ten pound, than A. will pay it, and so also perhaps, if the Covenant be in the distinctive, viz. to do such an act or to pay ten pound, now if the act be not done, yet no action of debt lieth for the money, but only an action of Covenant. But now let us come to the Cases of mere Covenants, But where the Lessor did Covenant to pay the quitrent, Divers Iustice● thought the Executor, not named was not bound. 1. & 2. P. &. M. D. 1ST and see which of them will charge an Executor, and which not. If a Lessee for years' covenants to repair the buildings, or to pay the Quitrents, issuing out of the Land let, there is little doubt, but the Executor to whom the term cometh, must as well as his Testator, perform that Covenant, although he did not covenant for him and his Executors, and yet of these cases doubt hath been, and touching the latter, viz. of paying Quitrents, Note the Case is 〈◊〉 supra in marg. divers Justices in Queen Mary's time were of opinion that it was a thing so personal that it died with the person and did not charge the Executors; Nor is there any contrary opinion expressed in the Book. And since that time, Pas. 38. Eliz. in ba. reg. viz. towards the end of Queen Elizabeth's reign, in the Action of Covenant between the Dean and Canons of Windsor, and Hide, touching reparations, at the first, much opinion was, that only the person Covenanting was tied to this performance, but after it was resolved, that that Covenant did run with the estate, Co. lib. 5. f. 24. and so both Executor and Assignee bound to performance; but in that case it was said by Popham Chief Justice, Resolved P. 39 Eliz. But not adjudged till M. 43. & 44. Eliz. that if the Covenant had been to do a Collatterall act, neither the Executor nor the Assignee had been tied thereby, and therefore where a Lessee for years' covenants within such a time to build a new house upon the Land, and dies before that time expired, I doubt whether the Executor be bound to perform this, or not; although it do concern the Land let, so as perhaps the Rent or Fine was the less, in respect of this charge of new structure or building, which is a great reason that the Executor, though not named should be tied to the performance: But if the Covenant had been to build a house elsewhere then upon the Land let, or to do any other collateral thing, not pertinent to the Land l●t, it is clear the Executors were named to perform it: and yet in those cases, if there were a breach, or non-performance in the Te●stators life time, as that the time of performance were expired before his death, than it is clear the Executors were bound to yield recompense by way of damages recoverable, H. 8. 〈◊〉 There the house was to be buil● upon the Land leased and yet 〈◊〉 seemed of a 〈◊〉 opinion in an action of Covenant, as both Shelley and F●tzherbert agreed, and so also did the Lord Popham agree in the said case of Hide, as I find in my own report of that Case, though in the Lord Cook reporting only the point in question that be not mentioned; Now let us consider of the case, where there is no express Covenant at all, so much as for the Lessor himself, but only a Covenant employed, or Covenant in Law, as we call it. As if Lessee for life, make a Lease for years, and die within the term, so as the Lessee is evicted by him in reversion, 〈…〉. or remainder. In this case it was resolved in the late Queen's time, by three Justices viz. Walsh, Browne, and Dyer, that by this Covenant in Law, the Executors were not chargeable, and in the same case the Lord Dyer sets down another resolution after, to the same effect, but Master Serjeant Bendloes reporting this latter case to be of a Lease made by Tenant in tail, viz. before the Statute of 32. Henry 8. or not warrantable by it, sets down the opinion contrarily, T●. 22. Fl●●t 459. inter & B●●deridge W●ndsor. viz. that the action was mainetaineable against the Executor. This may serve for instance, the like being in any other case, where the Lessor hath not a good, and a firm title, but perhaps subject to a Condition or other eviction, so as the Lessee cannot enjoy the Land according to his Lease. But this must be so understood, that no eviction, or breach of Covenant, is in the life of the Testator himself, for if that be, there is no question, but the Executor stands chargeable; and therefore if one make a Lease of Land by Deed, wherein he hath nothing; this Covenant is perhaps presently broken, and though the Lessor die before an action of Covenant brought, it will be mainetaineable against his Executor, though no express Covenant. This is useful to be known, though in these days there be few Leases so made, without express Covenant, and the Executors also named. And where there is a special Covenant in express words, Noke & Anders case. it doth qualify the Covenant employed, so as although Words of demise and grant tie the Lessor to a general Warranty of the title, against all men, yet it being after covenanted, that the Lessee shall enjoy against the Lessor and his Heirs, or against all claiming under him or his Ancestors; Now no eviction by or under any other title, giveth cause of Action, or bindeth the Lessor or his Executor, to make recompense. Of wrongs done by Testators, and whether Execut●rs be liable to amends. ALthough Executors do represent the persons of their Testators, yet if the Testator commit any trespass upon the Goods of another, or upon his person, of Lands no action lieth for this, against the Executor, for Actio personalis moritur cum persona; 41. Ass. p. 15. So if a Sheriff, 40. E. 3. Fitzh Ex. 74. Co. lib. 9 f. 87. ●. Jailor, or keeper of Prison, suffer one in execution for debt or damages to escape, though hereby the party, at whose suit the Execution was, be entitled to an action, viz. an action upon the case, against such Officer, by the Common Law, and by Statute an action of debt; yet if he so suffering die, for that such sufferance was a wrong of the nature of a trespass, no action lieth against his Executor for the same. And upon the same reason, as I presume, if one carry away his Corn, and Hay, without setting out the Tenth; although the treble value be recoverable against him in an action of debt, yet if he die before such recovery, the action is gone, and lieth not against his Executor; No not although the Testator were a Lessee for years, so as his state came to his Executor. Like Law in other penal Statutes, as for arresting one at the suit of I. S. without his privity or assent; Or, for not appearing as a Witness, being served with a s●b poena, and having charges tendered and many like; yea, if a Lessee for years commit waste and die, no action lieth against the Executor for this waste; for all these cases are within the rule of actio personalis moritur cum persona, and many other like Cases might be put, but these may suffice. Yet if a Parson, Vicar, or other spiritual, or Ecclesiastical person do suffer a ruin or decay of the houses or buildings upon his such spiritual Benefice or promotion and dyeth, his Executors are liable, by the spiritual or Ecclesiastical Law, to the successors Suit for amends to the repairing of such spoil or decay. And because some used fraudulently to grant away their Goods, so as nothing shall be left to their Executors, it was enacted temp. Elizabeth, 〈…〉 Cap. 10. that such grantees of Goods should be liable to the successors suit, for these dilapidations, as if they were Executors. As for one other case of this nature, viz. where an Executor wasteth the Goods of his Testator, or an Administrator the Goods of his Intestate, and dyeth. Whether his Executor be subject to Action for this or not. I adjorne the reader to that place where I shall treat of such wasting, or devastation by Executors. Unto this head, not unfitly may be referred, what before is said of Actions against the Executors of the Debtors Heir, Fitzh. Ex. 77. and the Executors of the Ordinary, for the Specialty, binding to payment reacheth not to any of these; but because their Testators should have paid these debts with the Goods or Profits of the Lands of the Debtor, and did not, but retained them to themselves▪ I conceive no difference between this and the other cases, sup●a. therefore for this as a wrong, are they suable; as I take it. So also by the same reason are the Executors of an Administrator chargeable, where he did neither pay the debts, 2. H 4 13. He may by 〈◊〉. Co lib. 11. f. 88 3. H. 6. 35. nor leave the goods to the next Administrator, Co●. for arrearages of an account before auditors, 11. H 4. 64. 91. 92. 9 H. 6, 11. but otherwise disposed of them. Yet an Executor is not chargeable in an action of Detinue, nor of account (except to the King) for the Testators detaining, and not paying or answering things received, or under his charge. And the reason why, after account made before Auditors, and the Bailie, or receiver be found in Arrearages and die, that in this Case his Executor is chargeable, is, because the auditors are made Judges by the Statute, West. 2. cap. 11. and so this Arrearage which they have judged, 13. Ed. 1 is a debt by Record. But if the case be put on the other side, viz. that the Bailie, or Receiver, have found in surplusage upon his Account, viz. that he hath laid out more in his Lords or Master's business, than his receipts amounted unto, and then his Lord or Master dyeth, C●. lib. 9 f. 87. a. now shall not he have any action against the Executors, for the surplusage, because it is out of the purview of the said Statute. THE SECOND TABLE. Chap. XII. Directing the Order and Method to be used by Executors in payment of the Testators debts. 1 OF disbursements about the testators funeral, 1 2 About proving of his Will, 2 3 Payment of the testators debts upon record, 3 4 And first debts to the King or Crown, 4 5 Debts by judgement or recovery in some court of record, 8 6 Debts by Recognizance and Statutes, 11 7 Debts by specialty, by Bonds, Bills, etc. 14 8 Debts by Rent reserved upon Leases of grounds, farmed by the testator, 18 9 Duties by the testators assumpsit or promise, or upon simple contract made by him, 29 Chap. XIII. Of Devastation or Wasting. 1 WHat shall be said to be a wasting or devasting, and how many ways that may be done, 32 2 Who shall by this Act of devastation be charged to yield recompense, and make satisfaction, 36 3 Who shall reap the benefit, or take advantage of this devastation. 38 4 How far the executor thus wasting, shall incur damage, or make his own goods liable, 40 5 By what way or means shall relief be had upon this point of wasting. 41 Chap. XIV. Of an Executor of his own wrong. 1 WHat acts or intermeddlings of such an one not being executor nor administrator by right, shall make him to become an executor by wrong, 49 2 In what manner, and by what name such shall be sued, especially when another then is executor or administrator, or himself after such act becomes administrator, 55 3 How far an executor of his own wrong becomes liable and obnoxious to suits, 57 4 What acts done to him, or by him, who is executor of his own wrong, shall stand firm and good, as done by or to the right executor, 58 5 Of addition and alteration by Statute: 43. Eliz. c. 8. 60 Chap. XV. Of Pleas by Executors, and which be best, which most prejudicial to them. 1 TO plead he was never executor, nor ever administered as Executor. 62. 67 2 To plead fully administered, 64 Chap. XVI. OF judgement against executors own goods, though no plea of the defendant, nor devastation do so occasion, and of the several manners of judgements in several cases. 73. Chap. XVII. Of married women and Infants Executors. 76. 1 WHether they may make Wills with or without their husband's assent, and how, where, and in what cases, 77 2 Whether they may be made executors without their husband's assent, or how far their husbands may hinder it, 84 3 Touching administration, viz. what acts in execution of the executorship they may do without their husbands, or their husbands without them, 89 4 Touching Infants, and their making or being made executors, wherein the several ages of females, 92 The several ages of males. 93 Chap. XVIII. Of Legacies. 1 WHether any Legacy in certain, and lying in Prender, may be taken or had without the executors assent by the Legatee, or him to whom it is bequeathed. 106 2 When an executor can, or safely may pay, deliver, or assent to a legacy. 108 3 Whether one executor alone may do it, where there be many; or what if the executor be an infant, or a married woman, ibid. 4 What shall amount to an assent of the executor, and what to a disassent, or a disability of assent, 109 How a lease or chattel real may be given to one for a time, with remainder to another, how not. 113 6 Where an assent to the first, or one part of the bequest, shall amount to an assent for the residue, 121 7 Of the manner of Assents, and therein of Assents conditional, 123 8 What manner of interest the Legatee in the remainder of a Lease, after the death of another, hath during the life of that other, and whether he may dispose of it during that time, and how? 125 9 Whether this remainder can be defeated by any act of the Devis●● for life, or by the death of him in Remainder first? 126 10 By what acts or accidents a legacy may be forfeited, lost, or revoked, as by revocation, death of the Legatee before, etc. 127 11 Whether the executor's assent shall have relation to the testators death, and shall make good a grant before made by the Legatee? 135 Chap. XIX. DIvers cases of bequests considered, and expounded. 139 Chap. XX. OF the executor of an executor. 146 Chap. XXI. TOuching Administrators. 148 Chap. XXII. COnsiderations in conscience touching payments of debts, Legacies, and the preferring or respect of persons▪ 149 Chap. XII. Of the Order and method to be used by Executors in payment of Debts, and Legacies, so as to escape a devastation or charging of their own goods. WE have gone through and dispatched the two first proposed parts, viz. 1. Touching the being of Executors, and the manner of their being. 2. Their having, and the manner of their having. We come now to the third part, viz. their doing or disposing of the testators estate. Now this consists principally in the issuing of money, though partly also in delivering or assenting to the execution of Legacies, not being money, but other goods or chattels bequeathed. Money is to be issued by executors, four ways ordinarily. About the funeral of the testator. About proving his Will. In paying of debts. In paying and satisfying of legacies pecuniary. As for the first, burials be as of necessity for two respects, viz. 1. Of charity to the dead, that he may be Christianly and seemly interred. 2. To prevent and avoid annoyance to the living, who by the very view of dead carcases, would both be affrighted, and within a few days distasted at the nose. We know that under the Law, the touching of a dead carcase made a man unclean and to need purifying: nor can we easily forget what the sisters of Lazarus said to our Saviour touching their brother, when he had been dead two or three days: viz. that the taking of him then out of his grave must needs bring a noisome savour. Hereabout therefore some expense is necessary, and that not only for fees to be paid, which in London amounts to a considerable sum, specially for such as are to be buried within the Church, but also otherwise, viz. for the Pall or Hearse-cloth, the ringing, etc. As for feasting, and banqueting, it seems not to me congruent to the sadness and dolefulness of the action in hand. But howsoever that be yet where the testator leaves not sufficient goods to pay his debts, festival expense is to be forborn, except the Executor will out of kindness bear it with his own purse; for dead debtors must not feast to make their living creditors fast. I mentioned a considerable amount of funeral fees payable in London, and surely (to let my thoughts fall back upon it a little) it is worth consideration, whether in that kind, and especially for those who dying there, are yet carried into their countries to be buried, the exaction be not either unjust altogether, or too onerously excessive, so also for much ringing contrary to the Canon made at the Convocation in the first year of King james. The next thing mentioned to justify and occasion expense, is the proving of the Will: But this way a greater disbursement (except for riding charges, or by reason of opposition by a caveat put in or the like) will not stand allowable then is prescribed by the Statute made in the time of Hen. 8. whereby the fees of Ordinaries, 21. Hen. 8. cap. 5. and their Scribes, Registers, and Officers be limited. And it is strange that these bounds have been so much and so frequently broken and transgressed, the rather, for that long before in the time of King Edward the third, 1●. Ed. 3. cap. 4. by an Act of Parliament, it is provided that the King's Justices should as well at the King's suit, as at the parties grieved, inquire after such oppressions, or extortions, for so they be called; yea S. Germ. Do. & S●u. li. ●. cap. 10. who was no stranger to the civil and canon law, as appears by his book, saith that the Ordinary aught to take nothing for the probate, if the goods suffice not for funeral and debts; but he means only that conscience is against it. Now we come to the third occasion of disbursement, viz. payment of debts, which is the main part of our business. We have before seen what debts lie upon executors, having assets to pay them; we are now to see in what order they must pay them, as well Vt sint fidi dispensatores▪ as for their own indemnity, ne quid res sua capiat detrimenti. To put ourselves into the better order or method of handling these things, we will sort out debts into their several kinds thus. They are of these three sorts, viz. either, Debts of or upon record. Or debts by specialty. Or debts without specialty. The debts upon record may be again divided into four sorts or kinds, viz. Debts to the King or the Crown. Debts by judgement or recovery in some court of record. Debts by recognizance. Debts by statute staple, or statute merchant. Amidst these, the debts to the Crown are to have the first place or precedence, so as if there be not come to the executor goods of greater value than will suffice for the satisfaction of these, he is not to pay any debt to a subject, and if he be sued for any such, M. 33. & 34. Eliz. the Lady Walsingh●ms case in come. ba. & Tr. 39 Eliz. he may plead in Bar of this suit that his testator died thus much indebted to the King, showing how, etc. and that he hath not goods surmounting the value of that debt. Or if the subjects pursuit be not so by way of action, as that the executor hath day in Court to plead, but be by way of suing execution, as upon statute merchant, or staple, then is the executor put to his audita querela wherein he must set forth this matter. And there is great reason why the King's debts should thus be preferred before any subjects, viz. for that the treasure Royal is not only for sustentation▪ & maintaining of the King's household, but also for public services, as the wars, &c▪ as appears by the statute, 10. Rich. 2. cap. 1. And therefore it is as I conceive, that Bracton saith of the treasures or revenues Royal, Lib. 1. Roborant coronam they do strengthen or uphold the Crown. And for the like reason as I think, did God enact touching the possessions of the Crown, that if they were given to any other than the Kings own Children, they should revert and come back to the Crown the next Jubilee, which was once in fifty years, sed de hoc satis. But this priority of payment of the King's debt before the debt of any subject, 21. E. 4 21, 22. is to be understood only of debts by or upon record due to the King, So must it be pleaded, M. 33. & 34. Eliz. and not of other debts. If any ask how the King should have any debts which shall not be of record, since by the statute 33. of King Hen. 8. cap. 39 it is enacted that all Obligations and specialties taken to the use of the King shall be of the same nature as a statute staple: To this I answer, that there may be sums of money due to the King upon wood sales or sales of Tin, or other his minerals, for which no specialty is given; so also of amersements in his Court's Baron, or Courts of his Honours, which be not Courts of record: The like of fines for coppyhold states there. So of the money for which strays within the King's Manors or liberties are sold. Also as the law hath lately been taken and ruled in the Exchequer, even debts by contract due to any subject, are by his outlawry or attainder forfeitable to the Crown. Yet neither these nor those due to such person outlawed or attainted by bond, bill, or for arrearage of rent upon lease is or can be any debt of record until office thereupon found; for although the outlawry or attainder be upon record, yet doth it not appear by any record before office found that any such debt was due to the person outlawed or attainted. Thus are not these debts to the Crown to have priority of payment before the subject's debts, though the King's debts of record are so to have; so that if a subject to whom the testator was indebted by specialty sue for this debt, the executor must plead that the testator died indebted thus much to the King by record, And must plead the record in certain as was held in the case of the Lady Walsingham, M. 33. & 34. Eliz. but it sufficeth to say, by a record of the Exchequer as was held Tr. 39 Eliz. in b. reg. more than which he left not goods to satisfy; if the truth of the case so be, for if there be sufficient to satisfy both, than the subject creditor is not to stay for his debt till the King's debt be levied. And if the subject creditor sue execution upon a statute, so that the executor hath no day in Court to plead this debt to the King, then is the executor put to an audita querela, wherein he must set forth that matter, and so provide for his own indemnity. But what shall we say of arrearages of rent due to the King? surely where it is a feefarme, rent, or other rent of inheritance, I see not how it can come under the title of debt, since for it no action of debt is maintainable so long as the state continueth in him to whom it grew due, and I find that the Lo. Dyar, M. 14. Eliz. said that the King could but only distrain for his rents, and not otherwise levy them of lands or goods; and that the King by his Prerogative may distrain in any other lands of his tenant our books tell us, but no more. Yet I know it hath been otherwise done of late in the Exchequer, which if it have been the ancient and frequent use of the Exchequer, it will stand as law though unknown to the Lo. Dyar. Now rend upon a lease for years differeth from the other, since for the arrearages thereof an action of debt lieth, but how can either of these be debts of record, when the not payment may be either in the Court of Exchequer, or to the receiver general or particular? & how then can there be any certain record of the not payment, so as to make any certain debt upon record? We know statutes have been made to make the lands of receivers subject to sale for satisfaction to the Crown; and besides that some ancient Patents direct the payment of Fee-farmes into the hands of Sheriffs, the statute of Westm. 1. cap. 19 provides remedy for the King against Sheriffs not answering the debts of the Crown by them received: so as the King's Farmer or debtor may have paid his rent or other debt, and the Crown have not yet received it. Of Fines and amercements in the King's Courts of Record, there is no doubt but they are debts of record. Come we now to the debts of subjects, and first those of record; touching which, I shall not be able to hold so good a method, and so well to handle things by parts as I would, for that the parts so stand in competition one with another for precedency, as that they must of necessity thereabout conflict and interplead one with the other, and contest one against the other: yet for the Readers better ease and ability to find out that which may concern him in his particular case, I will in the best sort I can single out these things into several parts, and place them in several rooms or stations. First, considering how it shall stand between one judgement and another had either against the executor or testator. Secondly, how between judgements and statutes, or recognizances. Thirdly, how between recognizances and statutes. Fourthly, how between one recognizance and another. Fifthly, how between one statute and another, adding to each some observations incident. Now next to the debts of the Crown are judgements or debts recovered against the testator, to have priority or precedency in payment, as being of an higher nature, or more dignity than any other, for that statutes and recognizances, though they make debts upon record, yet are they begotten but by voluntary consent of parties, whereas in every judgement there hath been a course and work of Justice against the will of the defendant, as is presumed; and this in a court of justice, and the records of such judgements are entered in public rolls, not kept or carried in pockets or boxes as statutes, Co. lib. 5. f. 28. and until inrolment recognizances are. Therefore executors must take heed that judgements against their testators before debts any other way, So Wray and Gaudy inter Bond & Bales 28. Eliz. vel circiter. if they have not sufficient for both, be first satisfied: lest they draw the burden of this debt upon their own backs. Yea though a writ of Error by the executor to reverse the judgement yet suffering a statute to be executed, must p●y of his own. Now their way to help themselves being sued, or pursued for other debts, is the same before delivered touching debts upon record to the Crown, viz. by plea, where they may plead, as in S●ire facias, upon a recognizance or suit upon band, and by A●dita querela, where they cannot plead, Read & Bear-blocks c●se. P. 43. Eliz. Ba. ●e. as when execution is sued upon a statute. And if they had no warning in the Scire facias, So held in Reads case sup●a. vide 12. H. 7. K●lw 24▪ 25. to like purpose. but upon nihil returned the judgement passed, there also the executor may be relieved by audita querela, because there was no default in him that he did not plead or set forth the judgement upon the suit in the Scire facias. Nor will it be any plea for the creditor by statute to say that his statute was acknowledged before the judgement, Co. lib. 4. f. 59 and so is more ancient, So Pe●iam in come. ba. inter Charnock and Worsley. 34. El●z. vel circiter. for a latter or more puisne judgement is to be preferred before a statute in time precedent. But if this judgement be satisfied, and it only kept on foot to wrong other creditors, Co. lib. 5. f. 28. or if there be any defeasance of the judgement yet in force, Co. li. 8. f. 132. than the judgement will not avail to keep off other creditors from their debts: And thus much touching debts by judgement▪ viz. how they stand in priority before other debts by statute or recognizance. Now to see how they stand among themselves, let this be observed, viz. that between one judgement and another had against the testator, So held in 15. & 16. Eliz. precedency or priority of time is not material, So in the Scire fac. by bond against Bales it was held. but he which first sueth execution must be preferred, and before any execution sued, it is at the election of the executor to pay whom he will first; yea, if each bring a Scire facias upon his judgement, the executor may yet confess the action, of which he will first, notwithstanding the Scire facias was brought by the one before the other. In this Scire facias the defendant may plead generally that he hath fully administered before the Scire facias brought without showing that he did administer in payment of debts of as high nature; yet that must be proved upon the evidence, else the trial will fall out against the executor. Thus have I delivered the most material things in my apprehension touching debts by judgement; yet thereabout I will add for the better information of the Reader, not studied in the Law, these few things. First, that what hath been said is only to be understood of judgements against the testator, and not of any against the executor himself, for of those being but debts by specialty at the time of the testators death we shall speak after. Secondly, what is said of the testator in case of an executor immediate, is likewise to be understood of the testators testator in case of the executor of an executor, for where A. makes B. executor, and B. makes C. executor, there the goods which came from, or were left by A. be not in the hands of C. liable to judgements had against B. Nor on the otherside, are the goods of B. in the hands of C. subject to the judgements had against A. And the like is to be understood of statutes, recognizances and bonds, as elsewhere is somewhat touched. 9 El. 4. 14. 15. Thirdly, Recoveries or judgements by mere confession, without defence, are yet of the same nature, and to have the same respect as other recoveries upon trial or otherwise; for although they may seem to be but of the nature of recognizances which be debita recognita, Quae. of arrearages of account before auditors without suit, for the executors are charged by judgement of the Auditors, by 〈◊〉 W. ●. judge. of record. 10. H. 6. 24. 25. Brde●●. 183. yet do they differ from them, in that here a debt is demanded by a declaration which is intended true, & that therefore the defendant cannot deny it, but in case of a recognizance it is not so, for there usually no action is entered, nor debt demanded. Fourthly, the foreshowed respect to debts by judgement, is not to be enclosed within Westminster Hall-and be restrained to the four Courts there, but may and must extend itself to judgements in other Courts of Record, viz. in Cities and Towns Corporate, having power by Charter, or prescription to hold plea of debt above forty shillings, as in London, Oxford, etc. For although there execution cannot be had of any other goods than such as be within the jurisdiction of that Court, yet if the Record be removed into the Chancery by Certiorari, and thence by Mittimus into one of the Benches, so execution may be had upon any goods in any County of England. Fifthly, in case where the testator was bound in a recognizance and a Sci. fac. brought against him, and thereupon judgement given; Although this judgement be not quod recuperet; Quae. of judgement in a writ of Annuity for arrearages after. as in case of actions of debt, but quod habent exeti●nem, yet since execution is the life, fruit, and effect of all judgements▪ this may now well stand for a debt by judgement, as I take it. Of Recognizances and Statutes. NExt unto debts by judgement, are those by statute or recognizance to be regarded by the executor. And because I find no difference of priority or precedency between these two, I therefore rank them together; yet one reason of preferment given to judgements before statutes in Harisons case, viz. that the one remains a record upon the roll in the King's court, whereas the other being carried in the pocket of the counisee is more private. This, I say, should give priority also to recognizances before statutes, as also another reason, for that statutes are not properly records, but obligations recorded; yet do I not find that this makes a difference for priority of payment. And indeed the statute is the more expedite remedy, since thereupon execution may be taken out without any Scire facias, or other suit, which cannot be in the case of a recognizance; for there if a year be passed after the acknowledgement, no execution can be sued out against the party himself acknowledging it, without a Scire facias first sued out against him: And if he be dead, then though the year be not past, yet must a Scire facias be sued, and thereupon the executor defendant may plead some plea to hold off the execution for a time. But this notwithstanding, the executor may satisfy the recognizance before the statute, Before S●i. fac. not after voluntarily, but if levied by writ of Extend. sa. good. at least if he do it before execution sued thereupon; for they standing in equal degree, it is at his election to give precedency and preferment to whether he will. Neither is it material which of them were first or more ancient; nor between one statute & another doth the time or antiquity give any advantage as touching the goods, though as touching the lands of the conusor it doth; but as for his goods in the hands of his executor, whosoever first getteth hold of them by his execution shall have the preferment. And before suing of execution, the executor may give precedence or preferment to whom he will. But now some may object that there is no course nor writ of execution for any such counisee against the executor, and if so, than statutes merchant, and of the staple, are in vain spoken of, and it is true that Master Brook after Chief Justice of the Common Pleas in his new Cases professeth, B●●. N▪ ●. ●●▪ & Stat. Mar. 43 that he knew not any remedy for the creditor out of the goods of the conusor after his death. But if this should be so, the Law were very defective, since the substance of many, especially of merchants, for and among whom the statute merchant was provided, consisteth usually more in goods then lands; besides the plea of Harrison, administrator of the goods of Sidney in bar of Green's action of debt upon an obligation, Co. l. 5. f 28. b. H. 40. Eliz. ●ot, 119. viz. that the intestate stood bound in a statute staple to I. S. and Green's reply thereunto, that there were Indentures of defeasance, no covenant whereof was broken, and the resolution of the Judges that the said matter in the replication was good to avoid the defendants plea. All this, I say, and the resolution of the Judges of the Common Pleas in that case, P. 32. Eliz. ●ot. 235. in cont. ba. and in the case between Pemberton and Barram, as also in the King's Bench by Popham and the rest of the Judges, that executors must satisfy judgements before statutes, and statutes before obligations, had been idle and savouring of gross ignorance, if no execution at all could be had against the executors of him bound in a statute and then should Greene have demurred upon the plea of Harrison and needed not to have pleaded that other matter, See Co. lib. 5. 91. execution against an Exec. upon a statute. Semaines case. but none of the Judges or Sergeants ever conceited any such matter: that which there was replied, viz. that the statute was not forfeited, is here to be remembered, Co. lib. 5. f. 28. as good matter both against statutes and recognizances, So if satisfied, though not discharged. and that whether the recognizance have a defeasance or a condition not broken, so that the recognizance is not forfeited. In none of these cases is the executor hindered from payment of debts by specialty, nor can he be justified or excused if by colourt hereof he refuse so to do; and indeed else might creditors be exceedingly defrauded by recognizances for the peace and of good behaviour, etc. and so by statutes for performing covenants touching the enjoying of lands, if these should keep off the payment of debts, and yet themselves perhaps never be forfeited, nor the sums become payable. Of Debts by specialty. NOw come we to debts due by specialty, viz. bond or bill (of which nature the greatest number of debts are) let us then see what course the executor must or may hold for satisfaction of these, admitting that the testator stood not indebted by any record, or that no forfeiture is of any such debt, or that there be goods in the executor's hands above the amount of such debts by record. This I say dato, then according to the rule proximus quisque sibi, the executor may first satisfy himself of such debts, as the testator by specialty owed him: for such debts are not released by the creditors taking upon him to be executor to the debtor; though on the other side if the creditor make his debtor executor, this is a release of the debt. Although it be given out or commonly spoken in the general, that an executor may first pay himself, yet is it to be understood with this caution or condition, viz. that the debt to him be of equal height or dignity with the debts to others according to the rule inaequali jure melior est conditio possidentis, for if his testator were indebted to other men by any statute, judgement, or recognizance, and to him whom he maketh executor only by bond, or other specialty, then may he not first pay himself, that is, by paying of himself leave them unpaid whose debts are of a higher nature; but if there be sufficient for satisfaction both to them and himself, then is it not material which be first paid. Now touching the debts to other men the executor hath power to give preferment in payment to whom he will; so that if the testator left but an hundred pounds, being indebted to A an hundred pounds, and to B an hundred pounds by several obligations, the executor hath power to pay B. 28. H. 8. Dy. 32. Doct. & St. ca 10. p. 78. his whole debt, and to leave A altogether unpaid any part of his debt, so as he have not commenced any suit before payment to B. But yet herein this difference is to be taken and observed by executors, that if the time of payment upon the bond of B were not come at the time of the testators death, then may not the executors before the money to B become payable pay him and leave A unpaid whose money was presently due. Yet if A forbear to demand or sue for his debt till the debt of B become also payable, then is it at the will of the executor to pay whether of them he will, so as the other may lose his whole debt if the goods will not suffice to pay both. What if A have only by word demanded his debt, and not by suit before the debt to B become payable, whether doth that hinder that the executor may not now when the money to B is also payable, pay him and leave A unpaid. And hereunto S. Germ. answereth negatively, making this verbal demand to be idle and of no value: yea, he addeth that if A have commenced suit before the debt to B become payable, Do. & St. p. 78. yet if the executor can delay the suit till the debt of B become payable, so that A can get no judgement before that time, and before B hath commenced suit upon his band, Quae. If then he may not plead this judgement post ult. contin. against A. as he may plead it against other suits after commenced. Co. li. intr. 148. 269. 149. a. then may the executor confess his action, and so pay his debt leaving A unpaid. But of this I make some doubt, for that I find in 9 of King Ed. the 4. some admittance, that if A having a Tally, patent, or other warrant from the King for receipt of money, of or from a customer or receiver where others had like warrants before him, but A maketh the first demand, now must the officer first pay him or else himself shall become debtor to him if he first pay others whose demands were after made, though they had warrants before A. Likewise there is as to me it seems, some admittance in the same book, that the very demand made by a creditor of his debt from an executor, who hath then assets in his hands doth entitle the creditor, to recover damages against the Executor out of his own goods; which if it so be, then doth even that verbal demand lay some tye or obligation upon the executor for payment. But hereabout, I lay down nothing peremptorily. We partly may discern by the premises how the executor is to guide himself in case, where there be divers debts by specialty all due, and payable at the testators death: before any suit commenced for any of them, for in that case clearly the first verbal demand gives not any precedence, all being due, and so standing in equal degree; And this is employed in many Books making the commencement of the suit only that which entitles to priority of payment, 4●. E. 3. Fitzh. Ex. 68 6. & 7. El. die. 232. vide 21. H. 7. Kelw. 74. or at least restrains the election of the executor. Yet admit that one creditor first doth begin suit, if others also after sue before he be paid, or have judgement; now cannot the executor pay him first who first commenced suit, but he who first hath judgement must first be satisfied. 5. Hen. 7. 27. So Walmsley inst. P. 39 Eliz. in Error. al. S●riants Inn. And the executor may herein yield help to one before the other, viz. by essoignes' emplances or dilatory pleas to the one, and by quick confession of the others action; Co. lib. Intr. 269. such a recovery by confession is pleaded against another▪ and admitted good & fo. 148. 149. Do. & S. p. 78. b. for he is not bound against his will to stand out in suit, and expend costs where the debt is clear, nor is this covi●e but lawful discretion, which conscience will also approve some good consideration inducing. Nay after suit commenced, yet until the executor have notice thereof, he may pay any other creditor, and then plead that he hath fully administered before notice. Nor is the Sheriffs return of summons or distress sufficient cause of notice, for the summons might perhaps be upon his land: but if it were to his person, it is notice sufficient, and then to save himself, he must say that he was not summoned till such a day before which he had fully administered; yet doubtless the executor may be arrested at the creditor's suit in some sort, which yet shall be no sufficient notice of this debt. As for the purpose, if he be sued by Latitat out of the King's bench, this supposing a trespass gives no notice of a debt, so also of a Subpaena out of the Exchequer; but the original returnable in the common pleas expresseth the debt, and so in some sort do the process thereupon. And therefore it seems by some books, So also was it ●ayd Tr. 29. Eliz. that if it be laid in the same County, where the executor dwells, he must take notice of it at his own peril. But this I take not to be Law, nor is there any great opinion that way: and although to make it more clear, the executor in King Henry the fourth his time, estranging himself from notice of the suit before payment to others, did allege that the action was laid in a foreign Country; that is no great proof that if his abode had been in the County, where the action was brought, he must have taken notice; but thus it was clearer, and a little surplusage hurts not. Now between a debt by obligation, and a debt for rent or damages upon a Covenant broken, I conceive no difference nor any priority or precedency, but it is as the executor's discretion to pay first which he will, as if all were by bond. So also of rents behind and unpaid as I conceive, but touching them principally intending rents upon leases for years divers considerations are to be had, and some distinctions to be made, as first, between rent behind at the time of the testators death, of which that before said is to be understood, and that which groweth behind after next between suit for the rent by action of debt, and by distress and avoury. As to the first difference, if the rent grew due since the testators death, then is it not accounted in Law the testators debt, for only so much is in Law accounted assets to the executor as the profits of the lease amounted to over and above the rent, so as for that rent so behind the executor himself stands debtor, as hath been resolved, and therefore he is suable in the debet, and detinet, whereas for rend behind in the testators life, and all other the debts of his testator he must be sued in the detinet only. Hence it must follow as it seems, that an executor sued for debt upon bond, or bill, cannot (except in some special cases) plead a payment or recovery of rent grown due since his testators death; though of rend behind at the time of his death it be otherwise. And yet here again another difference or distinction is to be taken, viz. where the profits of the lease exceed the rent, and where the rent is greater than the yearly value of the profits, for even there as else where is showed, the executor if he have assets, is tied to the holding of the lease, and payment of the rent, and consequently doth so much of that rent as exceeds the yearly profit, stand in equal degree, the testators debt with other debts by specialty; and yet again to reconsider this point, what if the debts of the testator by speciality payable presently at his death, or before the time that any rent can grow due upon this Lease, shall amount to the full value of the testators goods; may not then the Executor though he do not pay those debts before the rend day (for that would make the case clear) waive the term; for if he may, then happily i● he do not so, but shall by payment of any of this rent want goods to pay any part of the debts by speciality, it may lie upon himself, and his own goods, as happening by his own default. But on the one side it may be said that he could not waive it so long as he had assets, because thereby he stood equally liable to pay that debt being once due, as the other debts by specialty. On the other side it may be said that though the debts for rent, and upon bond, shall be admitted to be in nature equal, yet the case being put of rend not due at the time of the testators death, it was not then a debt nor duty, whereas a Bond makes a present debt, and duty, though not presently payable, the day of payment being not yet come, so as this latter is discharged by a release of debts, or duties, and so is not the former. So to leave that point unresolved, let us next see whether in some case, though the rent exceed not the yearly value of the Land, yet even that payable after the death of the testator may not stand in most part, if not wholly, upon the testators score as his debt, as well as if it had been payable before his death. Posito then that the whole or half years rend is payable at the annunciation of our Lady, and that the testator dieth two or three days or some like short time before that feast, now certainly should the Law be unreasonable if it should lay this debt upon the executor's shoulders in respect of those few winter days profits which he took. But surely since the taking of the profits induceth the Law to lay the rent upon the Executor as his own debt; therefore as where the Executor had the profits for the whole year or half year, except some few days incurred in the testators life time: those few days will be unregarded according to the rule, De minimis non curat lex, & the whole rent shall lie upon the Executor as his own debt. So on the contrary part, where the whole year or half years profit except some few days incurred after the testators death, the rent becoming payable so instantly after the testators death must in reason lie wholly upon the testators estate, as to me it seems. What if to this I add that the testators cattle wherewith the ground was stocked do depasture, and devour the profits all the time after the testators death. till the day of payment of the rents? Nay if the rent were payable at Mich. and the An●unc. and the testator dieth a few days after Mich. the rent being of or near the value of the Land, it will then be ha●d that the Executor shall for this winter profit pay the rent out of his own purse, especially if the whole years rend be payable at that one day as in some cases it is; or if the whole years' profits were taken in the summer as in case of a lease of tithes, it is so also of meadow grounds usually drowned in the winter. So if the lease be then to end not having a summer half year to succeed, and make amends for the winter: or if the winter half year be the latter half, the lease beginning at Lady day, so that there is but a summer for each winter following, and not any for the winter passed. Of like consideration with these is the case of a lease of woods for a rent, which being fellable but once in eight or nine years; now if the lessee, having made the last sale and felling before his death, the Law should cast the rent upon the Executors own estate for the time future, it should lay loss upon him, which is against reason, and contrary to the nature, and disposition of the Law even in this particular. As appears by this, that she enables an Executor to pay himself before any debt of equal nature, so as she more tenders an Executors indemnity then any other Creditors; therefore I think that with, and upon the differences above showed, even rend grown due after the testators death may in some cases be the testators debt payable equally with debts by bond. But here I conceive that if the executor were in such case of destitution of assets as might justify his waving of a lease over-rented, he then may waive these terms residue, because for the future the profits will come short of answering the rent, though at the first, and so in the total, the profits did exceed the rent. And if for want of waving, where he might, this rend fall upon him, the payment thereof would be no excuse against another creditor, nor as to him be a good administration, for Ignorantia juris non excusat. This is pertinent to our present consideration, which debt may with safety be paid, leaving another unpaid; and the hazard of executors, by ignorance of the Law hath been a principal motive to my writing these Discourses in English. Hitherto we have only considered, as I think, of rents, as they be recoverable by action of debt. Now let us see if there may not be somewhat different considerations touching distraining for rent, and so coming to recover it by avowry. Put we than the case that an executor hath fully administered in payment of debts by bond, and after the lessor or revertioner cometh and distraineth for arrearages of rent due in the testators life; can the executor in bar of the avowry plead fully administered, as he might have done if an action of debt had been brought for these arrearages? doubtless I think no, nothing shall hinder the levying of the rent upon the land so long as it is enjoyed under the title of the lease, except the land come to the King, upon whose possession no distress can be taken: I think therefore that the executor who paid out of his own purse to the value of this lease (for to I intent the case, and else could he not have fully administered, as in the case was put) he should, I say, have abated in the price and valuation of the lease, as well the arrearages of rent, as the rent futurely payable, both being equally leviable upon the land, and if he so have done, he is no loser by payment of this arrearage: but if trusting to the power of an executor, and to the plea of fully administered he did not so, but disbursed in respect of the lease to the full value without such abatement, he must bear the loss of his own ignorance. He might also another way have helped himself, viz. by payment of that arrearage, leaving other debts by specialty unpaid. And what if suits were presently commenced upon the testators death before he could make payment of the rent behind, whether might the executor then plead this debt for rent, as he might a debt by judgement or statute, and surely me thinks it probable that he might, because it is a debt from which he cannot be freed by payment of the other debts sued for by speciality. If the revertioner would▪ also commence suit before judgement had for the creditor by specialty, then might the executor help himself by confessing his action first; but this perhaps the revertioner would not conceive safe for him, since that way the others might get judgement before him, and so he might lose both his suit and his debt, whereas holding himself to the course of distress, the lease continuing, he hath land at the stake, for his debt. What if he distrain and avow? may not now 〈◊〉 executor pay him, or at least confess his ●●tion or avowry, so as he first having judgement, may first be satisfied. Surely after suit commenced, I see not how the creditors by bond can so be prevented, at least without judgement had for the rent; yea, though such a judgement be had, yet because the judgement in that case is not that he shall recover the sum due for rent, but only that he shall have a return to the pound of the cattle distrained for the rent, it is questionable whether the payment thereupon of the rent shall prevent the judgements after had in the suits upon bonds. But I think it shall, because although it be not an express recovery of the rent, yet is it such a judgement compulsary for the same, as makes the payment inevitable and of necessity. And where before we have made the question only between the said rent-debt, and the debt by obligation: let us now put the case between the rent-debt and the debt by statute or judgement. If then the lessor after death of the lessee distrain for the rent behind part of the testators cattle, and after there comes a writ of execution upon a judgement or statute of the testators; whether shall these beasts in the pound for rent be delivered in execution or not, admitting that without them there be not goods sufficient for satisfaction of the judgement or statute. And surely I think they cannot be delivered in execution: See ●3. R. 2. Bro. Pledges 31. Attainder of the party distraind shall not take away the distress. First, for that they are in the custody of the law, as in String-fellowes case, though there the King's preroga-time overtopped that point; yea, so I think, though they be replevied, for that they are to be returned to the pound, Vide Dye●. if judgement pass for the avowant, to which purpose security is given, so as they are but in t●e case of a prisoner bailed, who still is in some sort in custody. Secondly, for that this rend incident to, and descendible with the reversion, breeds a debt of a real nature, and so of more dignity and worth than debts personal. Thirdly, for that the land let (as in a sort debtor) stands chargeable with this distress from the very time of making the lease, as either by a contract real of quid pro quo, or rather by an operation of law or legal constitution, or ancient custom of the Realm, without any contract of persons. Lastly, for that the lessor doth not distrain the cattle therefore, or in that respect for that they are or were the goods of the testator, but for that he found them levant and couchant upon the land, which must afford his rent, or a distress for it if behind, so as if they had been any under tenants or strangers cattle, they might have been distrained. Some may perhaps object this reason why these impounded cattle should be delivered in execution, viz. for that where otherwise the creditor by statute or judgement should lose all or part of his debt, yet by this relief done to him shall not the lessor lose his rent, for that he may at any time after distrain any goods or cattle found upon the ground at any time during the continuance of the lease. But here besides the point of delay and stay for this rent, which to many is the sole means of maintaining their households and families; this further is considerable, that perhaps the lease may be near expiring, perhaps so highly racked and rent, even to or above the value, as that the executor having his testators stock taken from it and him by execution will not stock it any more, and so the land lying fresh, if the lessor shall lose the benefit of his former distress, he shall be perhaps without remedy for his arrearages of rent. And if the case were of a distress for rend behind after the testators death, I conceive though not so strongly, for most of the reasons abovesaid, that the law would be all one as in the other case; for though in this case respect shall not be had to the executor's loss upon whose goods the law casts this debt, though not the other, yet here the point of loss must fall either upon the lessor losing his distress, or upon the other creditor by specialiy or record losing wholly or in part his debt. And in respect of this local tye upon this land for payment of the rent whereto even the fealty of the lessee and tenure of the land bindeth him, and it I think no act that the lessee can do by entering into bonds or statutes, or having judgements against him can hinder the lessor or reversioner from taking his remedy upon this leased land for the rent therefore due, but rather any other creditor shall be a loser in his debt. Doubtless i● in bar to the avowry for this rent due either before or since the testators death, the executor will plead that the testator was indebted a thousand pounds, by statute, recognizance, or judgement, which is more than all his goods amounted unto, it will be no good plea, but may be demurred upon. Vid. Bro. Pledge. 31. What if he plead so much debt of record to the Crown? surely I doubt whether this plea will be allowed in any other Court then the Exchequer; yet if these arrearages of rent shall be levied upon the land, so as either the executor must pay it or lose the cattle distrained by a return irreplevisable, and then shall not have sufficient to satisfy the debt to the Crown, I see not how he shall well escape, when pursued in the Exchequer to make up this Crown debt out of his own purse, which is hard. For this we may pitch upon as a Maxim and principle, that an executor where no default is in him, shall not be bound to pay more for his testator then his goods amount unto. Again, it is a rule, that where nothing is to be had, viz. justly to be had, the King loseth his right: and our books tell us that the King's Prerogative must not do wrong, Potestas ejus juris est, So Bracton. non injuriae: nam potestas injuriae non est Dei, sed diaboli. On the other side it may be said, that if land leased come to the King by grant, outlawry, or otherwise, the rent reserved cannot be distrained for, and therefore is it not very unreasonable nor incongruent that the King's interest for his debt should make the distress of a subject to stand by and give place. This therefore among other of the premises do I leave as a quaere: nor is it altogether unprofitable either for an executor or creditor to know what ways and passages, what cases and contingents be doubtful and hazardous. And if in these unbeaten paths where our books and relations have held me forth no light, express, or particular, I have erred in mis-resolving, or missing to resolve, Not resolving. I hope I shall without difficulty obtain pardon. Now let us consider of assumptions or promises made by the testator upon good consideration, the performance whereof or making recompense and satisfaction for not performing, doth lie upon an executor as before is showed. These therefore are to come behind and give place unto all the former, so as an executor this way or for these sued may plead debts by specialty, rent, etc. amounting to the whole goods. And yet these debts by contract or assumption express are to be satisfied before legacies be to be had. Co. lib. 9 fo. 88▪ b. Doct. & Stu. lib. 2. cap. 10. & 11. First, because by the common law of the land those are recoverable, and so are not legacies: next because as our books speak, it concerns the soul of the testator to have aes alienum, all duties and debts to other men satisfied before the debtors voluntary gifts or bequests. Also these debts by assumption or simple contract, are to be satisfied before the reasonable part of the wife or children, to which by custom in some Counties they are entitled, see 21. Ed. 4. 21. & 2 Ed. 4. 13. & 2. Hen. 6. 16. And note that in such an action upon the case it is not of necessity to lay or set forth in the declaration that the defendant hath assets to pay all debts by specialty, Co. l. 9 fo. 90. b. Pinchons' case & fo. 94. Banes case. and this also; but if there want, the defendant must allege that in his excuse, for else it shall be presumed that he hath assets. So also in an action upon the case grounded upon the executors own assumption to pay his testators debt, and yet as the L. Cook conceives, and upon good reason as to me it seems, if the executors so promising had not assets sufficient in his hands to pay this debt promised, he pleading non assumpsit may give that in evidence, for then the consideration faileth, as also if there were no such debt due, since the plaintiff could not have recovered if he had sued, and so his forbearance to sue was no valuable consideration. Chap. XIII. Of Devastation or Wasting. THat which S. Paul of dispensers spiritual who are as it were the executors of the last will and testament of our Saviour Christ doth say or enjoin, viz. that they must be found faithful; The same is required of these less or inferior dispensers, the executors of men's Wills, and hereof they are to be regardful, not only in respect of escaping damage to their own estates, but more especially in respect of an oath which divers of our books mention to be taken by executors. And in one of the books of relations of cases in the twentieth year of Hen▪ 7. his time, there is an expression of three things whereto the office of an executor tieth him. 1. To do truly, and thereto are they sworn, saith this book. 2. To be diligent, viz. with sedulity to attend the discharge of the trust. 3. To do lawfully; nor well can this latter be without knowledge what is lawful or required by the law. Now what is formerly said of the right method and order of payment of debts, discovereth in much part how and by what ways an executor may waste and misspend his testators goods and consequently incur a devastation, and so make his own goods liable, but of that more fully and particularly by itself, and herein we will consider of these parts. 1. What shall be said to be a wasting or devasting, and how many ways that may be done. 2. Who shall by this act be charged to yield recompense. 3. Who shall take the benefit or advantage of it. 4. How far or in what measure the advantage shall be taken. 5. What way or by what means it shall be had. As to the first, this wasting is done divers ways. 1. by the executor his plain, palpable, and direct giving, selling, spending, or consuming the testators goods after his own Will leaving debts unpaid. 2▪ By paying what is not to be paid, which yet is to be understood where there are debts payable and unpaid. 3. By the way formerly discoursed of, viz. the not observing the right method and order of payment. 4. By assenting to a legatees having a thing bequeathed, debts being unpaid. 5. By selling goods of the testators at an under value, for be the appraisement what it will, and let him sell for what he will, he must stand charged to the best and utmost value towards the creditors. Yet if upon a judgement against the testator or the executor, the Sheriff sell some of the testators goods at an undervalue, this is no vastation of the executor, for this difference Hody chief Baron makes. But since an executor may happily prevent this act of the Sheriff by paying the due sum upon sale of the testators goods at the best value or otherwise, he is to be blamed to leave it to the conscience of the Sheriff or undersheriff rather. 6. And lastly this may be done to the executor's smart by undue, viz. not legal discharging of any debt or duty pertaining to the testator, & that divers ways requiring heedfulness. As if an executor upon a bond of two hundred pounds forfeited for payment of a hundred pounds accept the principal, or perhaps also some use, costs, or damage, and give a release or acquittal of the whole forfeited bond, or of all actions or upon record acknowledge satisfaction upon judgement had. 13. E. 3. Fitz. 91▪ This is a wasting of so much as the penal sum is more than is received, Ye●●on the other side, if an execut. by payment of an 110 pounds, get in a forfeited bond of▪ 200 pounds, it shall be an administrat. but of 110. pounds, 27. H▪ 8. 6. p. Fitz. i●st. and so far his own goods stand liable to creditors not satisfied; and so doubtless is it if he do but give up the bond having no judgement upon it, though he neither make release nor acknowledge satisfaction. But his verbal agreement to require or sue for no more, or his giving a note, of receipt for so much as he hath received, or delivering of the bond into a friends hands, or into a Court of equity in way of security to the debtor that he shall not be sued for more, is no devastation, since still the rest in law remains due and sueable. So this sets no more upon the executor's score than he received. But let him take heed of releasing except he be sure there be no other debts demandable. Nor only is there danger in releasing of debts, but of trespasses or other causes of action also. As if one take away goods from the testator or from his executor; If the executor make him a release, this is a devastation, and makes his own goods liable to the whole value of the goods released, as appears by russel's case, where the release of an Infant executor to one who had taken and committed to his use Jewels and goods of the testator being pleaded, the release was therefore held void in respect of nonage, for that if it should have stood good, it had amounted to a Devastavit, and made the executors own goods liable, which his infancy considered had been hard. Another way of discharging, dangerous to executors, is submitting matters of debt or duty, or touching goods taken away to arbitrement. For if by the award of the arbitrators the debtors or wrong doers be discharged or acquitted without making full recompense, the rest of the value will as to other creditors sit upon the executor's skirts, because it was their voluntary act thus to submit it to arbitrators. Thus may executors fall under prejudice, not only by wilful wasting or unfaithful miscarriage, wherein they are not to be pitied, but through incogitancy and unskilfulness also. Nay, I may say truly that it is very hard for executors in some cases to walk safely: For besides that to find out all judgements and recognizances by or against their testators, is of some difficulty more than for statutes, whereof by search in an Office descry may be had; yet with this difference, that statutes merchant, and statutes staple may be and stand effectual against executors, though not enrolled, albeit against purchasers of the conusors land they be not of force, if neglect be of enrolment within three months. But where statutes or recognizances lie for performance of covenants upon sale or lease of lands, marriage, agreements or otherwise; how hard is it for executors to know whether any covenant be broken or not; how hard to be sure they find out all bonds, bills, covenants, and articles in writing made and kept by others, whereby any money is due and payable before debts by contract or legacies: as also all promises or debts by contract payable before legacies: For the law hath prescribed no time for their claim and demand, and whether some such thing or mean of publication were not fit to be enacted, let the judicious consider. To attain to this knowledge of the testators debts, I remember that it is by the Lord Brook reported, that in King Henry the 8th his time, Sir Edmund Knightley being executor to Sir William Spencer, made Proclamation in certain Market Towns that the creditors should come by a certain day and claim and prove their debts, but he for this was committed to the Fleet and fined. For that none may make proclamation saith the book, without warrant or authority from the King, except Majors and such like Governors of Towns, who by privilege or custom may so do. But the dangers are only where there is not sufficient of the testators goods and chatels to satisfy both debts and legacies. For where there is so, the executor is not in any such hazard as aforesaid. This descry of danger may breed caution, and Qui timent cavent & vitant. As to the second we shall have in consideration two sorts of persons, videli●et, 1. His executors, there being many times divers executors, and the waste or devastation done but by one. Next his own heirs, executors, and administrators, videlicet, whether he dying, this act shall fix upon them, like charge and burden for satisfaction, as upon himself should have lain in case he had lived. Touching his companions though altogether make but one Executor, yet the misdoing of one shall not charge the rest, nor make their goods liable to recompense: as both appears by the Book of entries, Lib. Intra. sol. 327. and was also held in the time of Henry the seventh, K●lw. rep▪ ●ol. 23. Anno 12. of his reign. So. 11. H. 6. ●8. a. 4. El. Dy. 210 a. the writ so issued against the waster only P. 4. H. 8. rot. 303. Yea, of the same opinion were the judges twice in the late Queen's time, viz. first in a case between Walter and Sutton, in the common place, and shortly after in the King's Bench in a case between Hankeford and Metford; though these two cases be not reported in Print. Tr. 34. Eliz. And surely this stands with rules of reason or justice, Pas. 36. Eliz. that each should bear his own burden; If it were otherwise, many would decline, & abandon executorships as very dangerous to the most honest, and faithful, in case they were subject to wracking by the miscarriage of their Colleagues. As for the Executors, or Administrators, of the wasting Executor dying before he have born the burden of his mis-doing; I have found contrary opinions even in the late Queen's time. For first in the Exchequer it was conceived to be as a trespass dying with the person, as coming within the rule, Mich. 31. ●▪ 32. Eliz. Actio personalis moritur cum persona. But in the said case of Walter and Sutton, Tr. 34. Eliz. the court of common pleas was of contrary opinion, viz. that this was not escaped by the death of this misdoer, but the law would pursue his Executors or administrators, and lay upon their backs the burden of recompense or satisfaction; for that the testator or intestate doing this wrong had made himself to be debtor in the first testators stead, and therefore they who represent his person must with his goods make amends, and supply; And this later opinion was something in time after the former. Tr. 34. Eliz. Also between these two times was there an opinion in the said Court of common pleas agreeing in part with this latter: For there a judgement being had against an Executor, Mich. 32. & 33. Eliz. and the Sheriff upon the Fieri facias, returning that there were no goods, of the Testator in the Executors hands, and then this Executor dying; A Scire fac. upon a suggestion of devastation by the said Executor deceased was awarded against his Executor, and that upon good debate, and show of a Precedent left, and reported by M. I●●our in King Henry the eight his time. And it was then said to have been clear, that if a devastation had been returned in the life time of the said Wasteful Executor, his Executor then should have been charged. All the doubt was for that here that was not done in his life time, yet at last affirmatively (as above is showed) the resolution was. Touching the third point, viz. to whom the advantage of wasting shall accrue or who by reason thereof shall charge this wasting Executor. Put we the Case that the Testator stood indebted to A. by Statute, and to B. C. and D. by specialty, not of record, as Bond, Bill, etc. and the Executor having no more in asse●s then only that hundred pound, and this all being due to D. he payeth him the whole hundred pound not having any thing left to satisfy any of the rest of the Creditors: hereby wrong is done to none but A. who was a Creditor by Statute, and therefore he only shall make this Executor to pay the like sum out of his own goods, since as to him only this is a devastation, for that it was his election, to pay of tother Creditors; which he would, no suit being commenced by any of them; consequently no wrong was done to B. nor C. And if no such debt had been by Statute but all had been Creditors by specialty, and A. only had commenced suit, and that known to the Executor, now if after he paid all to D. he stands only as to A. liable in his own goods, and not to B. nor C. But if the Executor had only paid a legacy or debt by contract leaving nothing for satisfaction of the debts by specialty, than had he stood equally liable to each of the other Creditors, If upon fully administered pleaded to one vel aliter, he have the advantage of this vastation, taking up the whole ●umme wasted, quae▪ how the Executor shall relieve himself against another. Capiat qui capere potest, viz. he who first could recover, or by the voluntary act of the Executor, could obtain payment, must be preferred: if the sum would reach no further. For it shall by this mispayment, or misconversion stand with the Executor, as if he had not paid it nor departed from it at all upon the matter, and therefore I doubt not but it is free for him to give the advantage of this his error, to which Creditor by specialty he will, so as he shall stand free from all the rest, no sur●●●usage remaining, nor any Creditor of record being. For if there be any debt upon record, the Executor sued by a Creditor upon Bond may notwithstanding this his wasting plead in Bar of this suit; that there is such a record of a debt not satisfied, and that he hath no more than that debt amounts unto, and so admit so much still in his hands as he hath misadministred, though in kind it be not in his hands, but misspent, or unduly paid, as aforesaid. And what is before showed of the Statutes precedency before Bonds, in taking the advantage against an Executor for devasting or wasting; the same is to be understood of precedency of judgements before Statutes, and debts to the King before judgements, etc. As touching the forth point, viz. how far the Executor thus wasting shall incur damage or make his own goods liable: Doubtless no further than the value of the Testators goods wasted or misadministred. Therefore if one have advantage thereof to the full sum, no other after shall, for he is no further a trespasser or wrong doer, nor is the Testators estate any further, or d●epelier damnified. And as damages for trespass are to be proportioned to the value of the wrong done, and loss sustained: So also in this case the Executor by his misdoing, doth not draw upon himself his Testators whole debts, but so much only as the goods amounted to, which he did mis-administer, and which should have gone to the payment of the Testators debt, if he had not so misguided himself in the office of executorship, which default he must repair or make good. 41. E. 3. 31▪ b. And this proportion seems to me proved by the Case in King Edward the third, where the value or quantity is found, specially of the goods administered wrongfully; though there by a wrongful person, and in Suttons' case it was expressly held that each Executor should answer for so much as he wasted. Now for the fifth, and last point, viz. how and in what manner relief shall be had upon this point of wasting, for him to whom it pertains, first this is to be observed that in case where the verdict passeth directly against the plaintiff, no devastation can come in question, for that no judgement being for the plaintiff, no writ of execution can issue, and therefore if upon the issue of fully administered it shall appear that there hath been a devastation which causeth assets to fail, Pas. 36. Eliz. in 6. reg. then must the jury find that the defendant hath assets, and not find a devastation, as was resolved in the King's Bench in the late Queen's time between Hankeford and Metford, for there the jury finding a devastation, viz. a surrender of a lease for years, left by the Testator, it was held void, and nugatory, and was not regarded by the Court, which said that must come in by the Sheriffs return, viz. upon the Fieri fac. Thus assets being found in the Executors hands, judgement is given for the plaintiff to recover his debt, and to have it levied of these assets; nor is this finding of them by a jury against truth, though they be wasted, and so not to be had in kind: for the Executor hath them in right, since he hath not rightfully parted from them according to the rule, Propossessore habetur qui dolo (or injuria) desiit possidere. As in the case first put, this wasting cannot come in question for want of a judgement for the plaintiff, so also where the judgement itself extendeth to the Executors own goods by reason of some false plea whereof we shall after consider, for since that the consequence, and effect of a vastation is but to make the Executors own proper goods liable to the debt of the Creditor, this is altogether needless where the judgement itself hath laid hold on his goods. But now in case where the judgement extends only to the Testators goods in the Executors hands, let us find the way to relieve the Creditor, in case the Testators goods be wasted by misadministring or otherwise, for hereabout the right way hath often been miss, and again easily may be. In the latter end of the late Queen's time this course was taken, 45. Eliz. Pettifers' case. viz. the Sheriff returning generally that the Executor had no goods, Co. lib. 5. fo. 32 a surmise was entered that the Executor had converted to his own use the Testators goods, whereupon a writ was awarded to the Sheriff to inquire thereof by jury or inquest, which he did, and returned that it was found that the executor had wasted the goods; and thereupon a Scire facias was awarded against the executor, to show cause why execution should not be of his own goods, and upon two nihils returned, execution was so awarded, but a writ of error was hereupon brought. And although it were said for defence of that course that it was usual in the Common Pleas, and more favourable than the other course, where the Sheriff only returneth the wasting, or is sole judge thereof, whereas here it was found by an inquest of Jurors, and thereupon a Scire facias awarded; yet did the Court resolve the contrary, and reverse this execution as erroneous: For it was said that upon the Sheriffs return of nulla bona, viz. that there were no goods of the testator to be found, the plaintiff should have a special writ of Fieri facias, So 9 H. 6. f. 9 willing the Sheriff to levy the sum recovered, See Paston 1●▪ H. 6. 16. 36. upon surmise that A hath wasted, A. Fieri facias may issue against his goods only. If so, etc. either of the goods of the testator, or if it could appear that the executor had wasted the testators, then to levy it of his own goods; and this way, as was said, the executor hath good remedy by action against the Sheriff, if without just cause he levy it of his goods; So lib. Intra. f. 11. but the other way, viz. when inquest is thereupon taken, the remedy fails, since neither sheriff doing according to the inquest, can be punished, nor the jurors finding falsely are subject to any attaint, it being no verdict upon issue joined, but an inquest of office, which excludeth also all challenge of jurors. And whereas that book mentions the Sheriff's subjection to action only in case of his mis-feasance or doing wrong, I conceive that he is likewise suable for omission or nonfeasance in this case, viz. for not levying the debt upon the executors own goods where proof is made of his wasting. And where the book mentions this Fieri facias to be in this manner upon the Sheriffs return in a Scire facias, Co. lib. 5. 32. doubtless the book therein is misprinted, and should be a Fieri facias, for in a Sciri facias the Sheriff can return nothing but that he hath warned the party, or that he hath nothing where by he may be warned. This then is the course there prescribed, that first a general Fieri facias go out, and that thereupon the Sheriff return generally that the defendant hath no goods of the testators, and that thereupon the said special writ is to issue; yet in the beginning of the late Queen's time the verdict passing for the plaintiff upon the issue of fully administered, 2. El. Dy. 185. Woodw. and Chichesters' case. the Sheriff was not permitted to make such a general return of no goods to be found of the testators, but was enforced by the Court upon good advisement, either to levy the debt, or to return a Devastavit; and so was done at last by the Sheriffs of London much against their minds; and thereupon went out a writ to levy the debt of the executors own goods, first into London, and after into Devonshire, upon a Testatum that the executor had goods there: And it was there said, that if no goods could be there found, than the plaintiff might have a Capias to take the executor's body in execution, or an Elegit for the moiety of his lands. But certainly I cannot find (except with a difference) how this course of enforcing the Sheriff to do one of these two can be just; as neither could Justice Fulthorp, 11. H. 6. f. 38. in the time of King Henry the sixth, approve it. For a Jury of one County may find assets in another County, as was resolved in the time of King Henry the eight, 28 H. 8. Dy. 3. Yea, Co. lib. 6. f. 47. 46. Assets in Ireland, or elsewhere beyond the sea, may be found by the Jury where the action is laid. which yet was understood of goods movable, and not of lands. This then thus being, if a Jury of Kent find assets which be in London or Essex, how can the Sheriff of Kent, where the action was laid, levy the debt recovered by or out of these goods; or since he cannot, why should he be compelled to make a false return of a wasting, For the pl. may if he will suggest, the being of assets in a foreign County, and this is usually done. when the goods remain unspent and unwasted in another County? Why rather should he not be suffered to return according to truth, that there is nothing within his County or bailiwick whereof the debt may be levied, See lib. Intr. 11. a. Action upon the case for a false return of Devast. contra sacram. sui debitum. 28. H. 8. since even his oath tieth him to make a true return, nor is this contrary to the verdict, finding assets generally, and this so returned upon a Testatum, the process may be directed into the right County. But in the said case it was replied to the plea of fully administered that there were assets in Essex, the action being laid in Middlesex, and yet as it seems by the book, the trial was to be by a Jury of Middlesex, which, saith the book, may find the assets in Essex; but there the plea was demurred upon, and held a good plea, which proves that although the transitoriness of the assets make them subject to the notice of a foreign Jury, yet is it not like an act transitory and not local, for that must be pleaded to be done in the place where the action is laid, though in truth not so. But had issue been joined upon the point, me thinks it should be tried in Essex, where the assets be laid, the rather for that perhaps they may be real chattels, 2. Ma. Bro. Attaint. 104. and 10. Eliz. Dyer. 271. viz. lands leased to the testator, or other lands of him appointed to be sold for payment of debts, Because local and fixed, otherwise held, 3. Jac. in come. b. Co. lib. 6. f. 46. 47. which as heretofore hath been held, a Jury of another County cannot find. Besides, although such a foreign jury may find other movable assets, yet is at their election, they are not thereto compellable, 22. E. 4. 9 and 2. Ma. Bro. Att. 104. as elsewhere is holden. Here then may be the difference, viz. that if the assets be found to be in the County where the trial is, 18. H. 7. Kelw. rep. 51. a. there the Sheriff of that County cannot return Nulla bona, So held. P. 31. El. in scaccar. So if the process for execution go into another County, than where the verdict. found, as the diff. was held in Scaccar. 31. El. without adding that the executor hath wasted: but if there be no verdict at all touching assets, judgement passing against the executor upon a demurrer, confession, Nihil dicit, or the like; there may the Sheriff make such a return of Nulla bona testatoris, without returning any devastation: and so also where the verdict either findeth assets generally not finding in what place they be, 28. H ●. Dy. 30. b. or expressly findeth them to be in another County, as a little before we found, may be done by a jury of London, of assets in Essex. In King Henry the eight his time, Pas. 4. H. 8, rot. 303 4. El. Dy. 210. as a little after the said case of Chichester, is by the Lord Dier reported, the Sheriff returning upon the Fieri facias, that the Executors had no goods of the Testators, did add in the same return that one of the two Executors had wasted, But 2. H. 6. 12. without any Sci. fac: upon the devast. returned, A capias was awarded by the court; & see 9 H. 57 Bro. Ex. 57 & lib. Intr. 323. A Fieri fac. absolutely, & without condition. So. 9 H. 649. 50. A manu-script report. and thereupon a Scire facias was awarded against him, and upon Scire feci returned, and default made, execution was adjudged, and awarded against his goods only, and this course of Scire facias both the Lord Dier (as elsewhere I find it reported) and Prisot temp. Hen. 6. approved. But I am perplexed with doubt what plea the Executor coming in upon the Scire facias, could plead, for except his denial of wasting might be pleaded contrary to the Sheriff's return, 36. H. 6. f. 3. & Mordant 12. H. 7. Kelw. rep. 24. but vavasor. just. and all tother sergeants ● contra. and put in issue so as to cause a new trial after a former perhaps preceding judgement, which I think would not be admitted, than his coming in is to little purpose for aught I can conceive. here again it must be observed that in the case of Chichester, 2. El. D. 185. the judgement was had upon trial of fully administered, but in tother case temp. Hen. 8. it was upon confession, which is all one as I take it, with condemnation upon Demurrer or non sum informatus, or trial upon non est factum the Bond or a release to the Testator or the like. Now between all these, & that of Chichester there is a broad difference, for there the defendant being convinced by verdict to have assets, which if they continue not in his hands, in kind, must be answered out of his own goods as wasted, therefore the Fieri facias to levy the debt of the Testators goods, if any found or in default thereof out of his own goods is very agreeable, and pursuant, but in none of tother casess is there any such trial or conviction of the defendants having assets, so as it rests aeque dubium, whether they have assets or not, and therefore it may seem somewhat hard, and harsh to send out such a writ in that case, Co. lib. 5. f. 32. Mich. 41. El. rot. 2441. and so should I have thought if I had only seen the report of Pettifers' case; Co. lib. Intr. 269. b. A recovery of debt precedent was pleaded: Pl. replied nul tiell record, & def. would not maintain his plea. Ideo condemp. But looking into the record, and finding the condemnation there to be by Nihil dicit, in effect I cannot uphold any distinction of course in respect of the said difference of cases. Nor indeed doth that course there directed presume that the Executor either hath assets, or hath wasted them, but commands that if assets, etc. then the levying shall be one way; If neither, he must so return and do nothing. if wasting, than another way, so if neither Nihil fiend. CAP. XIIII. Of an Executor of his own wrong. TO begin with some definition, or description of this man; He is such as takes upon him the office of an Executor by intrusion, not being so constituted by the Testator or deceased; nor for want of such constitution substituted by the ordinary to administer. Touching whom we will consider in these parts, and with this method, viz. 1. What acts or intermeddlings of such an one not being executor nor administrator by right, shall make him to become an executor by wrong. vide 5. more perstat. 43. E. cap. 8. 2. In what manner, and by what name such shall be sued, specially when another then is executor or administrator or himself after such act becomes administrator. 3. What acts done by him shall stand firm, as if he had been an executor by right. How far he becomes liable to creditors, and how, and to whom. 5. See a late stat. 43. El. cap 8. hereabout. As to the first, 1. And 2. P. & M. sod. Dy. 105. b. it was in the time of Queen Mary doubted, and not resolved whether the only seizing, and taking into one's hands the goods of the deceased did make one executor of his own wrong without any further act. 1. Eli. Dy. 166. & 167. So also Bal●●. 50. Ed. 8. 9 And in the beginning of the last Queen's time the Lord Diar said that the post slion, and occupation of or meddling with the goods is that which gives notice to Creditors, whom they are to sue as executor. But doubtless Creditors must look further before suit, for else can they not know whether he so intermeddling be executor or administrator, nor consequently how to found their suit rightly, and safely for good success, since a suit against an executor as administrator, or against an administrator as executor, will prove ruinous, and fall to the ground. Yea where an administrator sued as executor did not plead that administration was committed unto him, but generally denied that he was executor or administered as executor, 13. & 14. Eliz. Dy. 305. 306. the Lord Diar held that it must be found for him, yet left it doubtful: but the clear and safe way had been to have pleaded the administration, etc. And in the former case the Lord Dyer said, 1. Eliz. Dy. 166 & 167. see lib. Intra. f. 322. b. that one intermeddling only about the funeral, and laying out money therefore; an overseer or conductor, or he who hath Letters of the ordinary ad colligend. viz. to get and keep the goods in safety, and one who intermeddleth by virtue of a will truly made, but controlled by a latter will after found and proved, may free himself from being an executor of his own wrong by special pleading how or in what right he intermeddled, and traversing his administering in other manner, and that this traverse need not, nay may not be; 21. H. 6. 28. 10. H. 7. 28. was held in the time of King Henry the 6th.. and 7th.. for that such acts amount not to any administering at all: Yet lib. Intra. 322. b. where he confessed about funeral he traversed aliter. and where no administering at all is confessed; such a traverse of not administering in other manner is dissonant, and not legal. But let us look back upon these several points exempted by the Lord Dyar, Lib. Intra. 312. where by letter ad collig. He traversed; Absq. hoc. quod & Exec. and we shall see some cautions necessary touching them, and their safe entertainment, first as touching the point of burying the dead, it must be understood to be with some expense of the deceaseds goods, and so is it expressed in the said Book of Henry the 6th.. his time: else for a man out of charity, 21. H. 6. 28. to lay out of his own money (not intermeddling with the goods of the deceased) to bury a friend, hath little colour to involve him so doing in an executorship by wrong: taking the case than that such person lays out or expends of the deceaseds goods or money upon his funeral, heed must be taken touching the measure▪, and proportion whereabout, though I can give no particular, and distinct limit, yet doubtless either mere necessity, viz. Church duties, etc. or at least decent suitableness to his quality must be the bounds. And herein to speak as I think, this latter must either be utterly excluded, or held within very narrow compass, for what reason that a Knight or man of higher quality leaving (though perhaps entailed Lands of good value) yet goods not sufficient to pay his debts, should have a hundred pounds or more of that which should satisfy Creditors spent in pompous interring of him for his worship, Lib. Intr. 322. and reputation? next overseers may only be excused for seeking to preserve, and keep the Testators goods not in case they expend or dispose thereof. 8 and 9 Eliz. Dier. 255 256. He sold blended corn, but there he pleaded not the special matter. So also for him who is authorized by the Ordinary to collect, for if he sell or dispose of any (though goods otherwise subject to perishing) it makes him an executor by wrong, as was resolved in the late Queen's time notwithstanding that by the Ordinaries Letters, he was expressly directed or warranted so to do, for it was said the ordinary himself could not so do. As for him who administered by virtue of a will after disproved or controlled by a latter, He must not doubtless stand free, for the goods before administered, but either as rightful or wrongful executor stand liable to the Creditors. 1 And 2. P. & Ma. Dyer. 105. Nor doth every such intermeddling by one out of all these excuses, and evasions, as would be an administration, make one an executor by wrong. If one do but take an horse of the deceased, and tie him in his House or Stable, this makes him not an executor, saith Paston a justice; So of like acts or intermeddlings, 21 H. 6. 28. as he that delivers to the wife of the deceased her apparel, at least if it be no more than is convenient to her degree. But if she take, or another deliver more than such to her, 33 H. 6. 31. 1 Eliz. Dy. 166 she or he becomes an executor by wrong: But now let us come to a difference, where there is a rightful executor, and a will by him proved, or administration committed, for there such light acts or intermeddlings shall not make one an executor by wrong, Tr. 37. Eliz. by F●nner Just. If one do any such act as pulls the property out of the executor, he is become an executor by wrong If the goods be aliened by fraud, he who takes them after the executor's death is an executor by wrong. Tr. 37. Eliz. as where there is no other of right to be sued. As if one take goods wrongfully from such a right executor or administrator; This (though he convert them to his own use) makes him not an executor by wrong, but a trespassor to the rightful executor or administrator, who even for these goods once Assets in his hands stands liable to suits of creditors, they being neither lawfully evicted nor rightly administered: But in case there had been no executor at that time, or no Will proved nor administration committed, than such taking of the deceaseds goods into a strange hand had made an executorship by wrong. L. 5. E. 472 a. Tr. 2. Jac. in come. b. And thus was the difference lately resolved, Co. lib. 5. 33 & 34. as is reported by the Lord Cook in the case between Reade and Carter in the Common Place. Yet this further difference was there held, viz. that although there be an executor or administrator by right, yet if a stranger take upon him to receive debts and make acquittances, or to pay debts claiming to be an executor, he is sueable as an executor by this act: and so also in the late Queen's time was held by 6. Just. 1 El. D. 166. b. as touching the receipt of debts and making acquittances, but the book mentions not whether any other executor than were, or not. But in the point of bare payment of debts Frowick makes another difference, H. 20. 7. 5. viz. If a stranger do with his own money pay the debts of a friend deceased, and not with the debtors: This is but an act of charity, and makes him not an executor by wrong, otherwise, if with the debtor's money. Yet to this another difference must be added, viz. that if he thus paying with his own money, have taken into his own hands goods of the deceased; then is his payment presumed as by or out of the value of these goods, and so makes him an executor by wrong. Contrarily, if he have no such goods in his hands. And in the point of intermeddling with and disposing of the testators goods where another executor is; this further difference is to be added or understood, viz. That where the goods so taken never came actually to the executor's hands, but were in a remote place, there this taker becomes executor. For as it were mischievous to the executor if he should by a possession in law cast upon him stand chargeable with these goods in remote places purloined as assets in his hands; so were it as mischievous to creditors, if neither executor by right, nor this stranger as an executor by wrong should stand liable to creditors for them. It is true that the right executor may sue and recover damages for them, and that so recovered shall be Assets; but the creditor hath no means at the Common law to enforce him to sue, and perhaps it may be a cold suit. And with these additions I think that late resolved difference may stand firm and sound. Yet in former times without such difference the taking only and possession of the goods of the deceased, was held to create an executorship by wrong, as Belknap said in the time of King Edw. 3. 50. Ed. 3. fo. 9 and especially if the act were such as removed the property out of the right executor, Tr. 3. Eliz. as Just. Fennar in the late Queen's time said, Teste meipso. How and by what name suit shall be against such, and the like. TOuching the second point, viz. in what manner suit shall be against such: 2. Point. First in general, this usurping executor is not in suit to be distinguished by name from the right executor, L. 5. E. 4. 72. Co. lib. 5. 30. 31. & 33. b. 21 H. 6. 8. but to be sued generally by the name of executor, of the last Will and Testament of the defunct, and then if he will deny himself so to be, he must plead, that he neither is executor, Co. lib. Intra. 144. but 145. a. i● the verdict. he is called Exec. De njuria sua propria. nor hath administered as executor: Then the plaintiff must prove that he hath administered in some such or the like sort as aforesaid. And it hath been divers times held, 39 H. 6. 45. 46. that where there is a right executor, and yet another doth administer by wrong, 21. H. 6. 8. 19 it is at the election of Creditors either to sue them jointly together, 9 E 4. 14, 15. or one or both of them severally and by himself. 1 & 2. P. & M. Dy. 165. 33. H. 6. 38. But if where administration is committed, another also administers by wrong, these cannot be sued together as administrators; 35. H. 6. 31. for though one may be an executor by usurpation or wrong, yet none can come to be an administrator by wrong, since no other but such as receiveth that power from the Ordinary can so be; therefore in that case there is a necessity of suing him apart and by himself (who so usurpeth administration) by the name of an executor. So if A administer the goods of B. not being executor nor administrator, and after his such doing and disposing of the goods he obtaineth administration of the goods of B. but the goods left or coming to his hands since the administration committed suffice not without the other debts received or released, or goods sold before, to satisfy creditors. Now if any sue A by the name of administrator, ● R. 3. 20. he shall have no further relief than according to the value or extent of the goods left in or come into his hands since the administration committed, and if those be fully administered, he shall get nothing. If they remain unadministred, but amount not fully to his debt, he must want so much of satisfaction. And if he will be relieved or satisfied out of the goods before disposed of, he must sue A as executor of B: 21. H. 6. 8. If the administration were committed before the suit began, the writ shall abate▪ else not, as was of old conceived. and so was it ruled and resolved by Gawdy and Suit, Justices in the King's Bench in the late Queen's time, viz. Tr. 30. Eliz. And if this now administrator will plead in abatement of this action, that administration was committed to him, and demand judgement if suit shall be against him as executor. Then the plaintiff must in this replication as I take it, set forth the special matter, viz. how the defendant did administer before administration to him committed. But if one to whom administration is committed do devast, and this administration is by suit repealed because he was not the next of kin, and administration is committed to another; now a creditor who would be relieved out of the goods wasted, must sue that first as administrator and not as executor of his own wrong, said Popham Chief Justice, for he did rightfully administer for that time. As for the third, 3 Point. viz. how far this executor of his own wrong, How far liable to creditors. becomes liable and obnoxious to suit; consider we these things; first he becomes subject both to the action of the executor who hath right to the goods wrongfully intermeddled withal by him though it were before proving of the will, and also to the action of the creditor who hath right to the satisfaction of his debt. Secondly, Yet he must look to his plea, else by it he may draw all sued for, upon himself, as if he deny his being executor or administrator. as touching the measure how far he is engaged, doubtless he is not by his wrongful administering become chargeable with the whole account of the testators debts, but only so far, and with so much thereof, as the goods which he so wrongfully administered amount unto, and this seems to me proved by the case in the time of Edward the third, Co. lib. Intr. 144. 145. Plu● de ●oc. where the inquest found not only the administering or intermeddling by the executor wrongfully, but found also by direction of the Court (as it seemeth) what the value was of the goods so wrongfully administered, which had not been material, if the administering of a penny had made one as far chargeable as the administering of a pound. Besides, if it be so that a rightful executor wasting goods of the testator to the value of twenty pounds, shall be no further charged than that value; then doubtless so shall it be also in this case, for both be wrongful administrations: only this difference there is between them, that in one case the administration is by a wrong person, and in the other case in a wrong manner. 1. El. Dy. 167. cap. 12. Nay, the Lord Dyer doth not stick to call him, who administereth wrongfully, or in undue manner, expressly an executor by wrong, in the case of Stokes against Porter, though he were rightfully executor, because he did dispose or execute wrongfully. As to the fourth, 4 Point. viz. what acts done to him or by him who is an executor of his own wrong, What acts of his of force. shall stand firm and good, as done by or to the right executor. Suppose, first, that the deceased were indebted to him twenty pounds who thus usurpeth executorship, whether may he pay himself or not? And this point was in debate in the King's Bench between Coulter and one Ireland, M. 40. 41. Eliz. Co. lib. 5. f. 30. executor of Hunt, where it was strongly objected, that notwithstanding the rightful executor or administrator might punish him, and recover against him for the goods which he administereth; yet another creditor suing him as executor generally, and so affirming him to be (for there is no special form of writ or declaration to distinguish an executor by wrong from a rightful executor) he stands as against him in the state of a rightful executor, and therefore may first pay himself before he pay others; and of that mind at the first were Fenner and Gawdy, Justices, yet did they admit that this payment should not stand good, as against the rightful executor or administrator. And Popham and Clinche held strongly that neither should it stand good against other creditors, for then every man would rush upon the testators goods and be his own carver in payment: And whereas it was said at the bar, that the Lord Anderson upon an evidence at Guild-Hall had ruled it otherwise, Popham at another day of debate of the said case, related that the L. Anderson did deny that he ever so ruled, or was of that opinion; and further informed that both he and Justice Walmesly, Periam and Clarke, Barons, did agree with Popham and Clinche in opinion. After which, Justice Gawdy, as also Fenner, if I mistake not, changing their opinions, and concurring with the rest, judgement was given accordingly. In the debate of this case, question was made, if such an executor by wrong pay a debt to another creditor by speciality, whether this shall not stand firm and good, since he stands liable to creditors so far as the goods by him administered do amount, and it was agreed by the better opinion at least that this should stand firm and good, so as if the payment were out of his own goods, he might retain to himself in lieu thereof so much of the goods of the testator, for here he doth not, as in the other case, advantage himself by his own wrong. Yet that opinion allowing this payment to creditors must, as I think, be understood with this difference, viz. that this payment shall stand as against other creditors, but not as against the right executor or administrator, for then any stranger might usurp the office of executor, and take from him that liberty and election to prefer which creditor he will in first payment; yea, might take from the executor power to pay himself before other in case there were a debt due to him, which were very unreasonable. Of addition and alteration by the statute 43. Eliz cap. 8. We having considered what the Common law is, 5 Point. and willeth in the premises: Let us now see what alteration or addition a late statute hath made. In the last Parliament of the late Queen Elizabeth, consideration being had of subtle getting into men's hands goods of an intestate by deed of gift, or letter of attorney from one of small or no ability to whom such subtle contriver hath procured administration to be committed, and so himself would stand free from the suit of Creditors, the administrator himself either not being to be found, or not being of any value to satisfy Creditors. It was therefore enacted that every person, receiving or having any goods or debts of any intestate, or any release or discharge of any debt or duty belonging to him upon any fraud as aforesaid, or without consideration of or near the value (except in satisfaction of some just, and principal debt to the value of the goods or debts due from the intestate) shall be charged as Executor of his own wrong so far as the value of those goods, and debts amount; deducting all principal just debt to him due, and all payments by him made, which a lawful Executor ought to have paid. here have we a touch of all the parts precedent, or at least three of them. 1. We have first a new Executor by wrong though intermeddling under the title of an administrator. 2. We have a limit of the charge by him incurred suitable to our former expression. 3. Lastly, we have to him an allowance of debts owing to himself or duly paid to others, which is more than we have conceived allowable to another Executor by wrong. CAP. XV. Of pleas by Executors, and which be best, which most prejudicial to them. SInce amidst the Pleas pleaded by Executors there is such difference as that some induce one kind of judgement, some another, some drawingmore loss, & burden upon Executors than others: Let us consider of the differences, so as light may be taken to choose the safest or fittest for each case. If an Executor do utterly estrange himself from the executorship; Plea; denying the Executorship. saying that he was never executor nor ever administered as Executor (for that must be added) then if issue be taken upon this plea, 21. H. 6. 19 20. Bro. 62. and it be found against him; 2 E. 4. f. 4. 1. 9 H. 7. 15. the plaintiffs shall have judgement to recover not damages only, but even the debt itself out of the proper goods of the Executor, if none of the Testators can be found to satisfy it. Lib. Intr. 322. 333. 33. H. 6. 33. 34. And this shall be thus not only where it is found that the defendant was made Executor by the will, and proved it, and so could not choose, but know it, but even also where he had never proved the will whereof he was made Executor, nor ever administered by virtue thereof: yea though he did before the Ordinary refuse to be Executor of this will, or to intermeddle with the execution thereof; yet if any other named Executor with him did prove the will, or did not refuse to be Executor, let such other refuser take heed of pleading that plea. For truth is against the first part of his plea, viz. that he never was Executor; and so the verdict which must be veritatis dictum, must needs pass against him, and make his own goods liable as well to debt as damages. What if no other were made Executor but this only who refused before the ordinary, may he safely plead that he never was executor? I think not, since he so was executor before his refusal, He was suable as soon as the Testator was dead. that he might have released all debts due to the Testator, and given away all his goods, therefore I think he must plead specially showing his refusal, andnot generally deny his being Executor. Nay admit he never was once named, made or intended to be made executor, yet having pleaded this Plea, that he never was executor nor administered as executor, if it shall be found by verdict that he did administer or intermeddle as executor, But if he did it as Adm. it is otherwise, yet see that specially pleaded Co. Lib. Intr. 148. a. the same blow or burden falleth upon him, for then the latter part of this Plea is found untrue, yea the whole upon the matter, for by his administering he became an executor of his own wrong, and the denial of this executorship by wrong or usurpation shall be as penal to him as the denial of a rightful executorship. See Co. Lib. Intrac. Judgm. so entered fol. 145. b. Read & Carters case. The like Law where the executor pleads a release made to himself, or a payment of the debt or other performance of the condition made by himself. Nay I find in this latter case the judgement entered generally against the defendant, as against another, Co. Lib. Intr. 29. a. not first de bonis testatoris si, etc. See Bro. Ex. 22 these reasons for this diff. for his own debt, not being executor. And the reason why the Law makes these so penal to an executor is, because his Plea is not only false, but the falsehood thereof was wilful, since it must of necessity be known to himself to be so. And lastly for that all these Pleas, if they had proved true, had been perpetual bars at least against the defendant, 33 H. 6. 23, 24. the first indeed had not been a bar against another being in truth executor or administrator. But if the executor had pleaded a release made to his Testator, finding such an one among his writings which yet was either forged or never both sealed and delivered by the plaintiff as his deed, So of other perform. Co. Lib. Intr. 133. a. or if he plead payment made by his Testator, neither of these Pleas found against him shall cause the judgement to fasten upon his own goods, 6 E. 4. 1. 7 E. 4. 8 So Bro. Ex. c. 22 that the Book contrarily reported 34. H. 6. 22, 23. is erroneous, as was descried by Fitz. & al. 23. H. 8. the Record being not so as the Book saith the judgement was. so if he denied the Bond or Bill, whereupon the Suit is grounded, to be the Testators deed. For in all these cases the truth being not known to him, he might honestly, and reasonably conceive it to be as he did plead. But what if he plead fully administered, and this be found against him, which rested in his own knowledge? shall not this false Plea expose his own goods in defect of his Testators to the satisfaction of this debt? no it shall not for that though this were a false plea, & that within his own knowledge, yet was it not a perpetual ●●rre, for if it had been so found as was pleaded, yet assets coming after to the hand of the Executor, the plaintiff should then have relief, and satisfaction out of these since accrued assets. If any ask how assets may after come, I will give him two or three instances. First, it may be by recovery of debts before withholden, or of damages for goods taken away, or by voluntary payment of a debt not before due, for that the time of payment was not come. Secondly, if the Testator having a lease for twenty years did demise the same to I. S. for the whole term, if he so long should live, if he were alive in time of the former verdict, but now is dead, the term continuing, this is now assets which before was not, whilst it was but a possibility of a term. Other instances might be given, but these may suffice. Lib. Intr. 148. 149. This good though the judge. were by non sum inform. & no averment that it was without covin. If the Executor pleaded that the Testator stood bound in such a Statute, or that there was such a judgement against him of debt to the King, beyond the satisfaction whereof the goods would not reach: This is in effect a fully administered, though special, and not general, and the Law is alike (as I take it) in all these cases as to the not making of the Executors goods liable. Co. Lib. Intra. 152. But in all these causes though the debt shall not be adjudged upon the Executors own goods, 11 H. 4. 5. There a cap. ad sat. was awarded for the Damages. yet the damages shall, in default of the Executors goods to satisfy them. And in these cases it is not material whether the judgement passed upon trial or demurrer. Nay if the defendant Executor plead no plea, but confess the action generally, or be condemned by Non sum informatus, the judgement is the same, viz. to record the debt only out of the Testators goods, and the damages of the Executors goods in default of the Testators, what if the Executor defendant, confess that he have assets to the value of part of the debt, not of the whole; there for so much as is confessed the plaintiff may pray, and have judgement presently without damages, But he may I think forbear so to do, and to the judgement for part add that when more assets come he shall have more. Lib. Intration. Fol. 223. and may maintain for the residue of the debt that the defendant also hath assets for the rest, and so go to trial, as appears both by the printed Book of entries, and another manuscript which I have; But what if this trial pass against the plaintiff? shall he then have an additional judgement for damages in respect of the former? I think he shall have costs, which commonly run, with or in the name of damages, but without a writ to inquire of damages, none being found by Verdicts, the Court doth not usually adjudge damages: yet in the Book of entries I find 6s. 8d. Fol. 542. damages assessed by the Court upon a confession in a writ of Rationab. parte bonorum against Executors, and this hath much affinity with the action of debt. Yea, in the very action of debt where the jurors for miscarriage after their departure from the Bar were fined, I find that the plaintiff renouncing the assessment of damages by them made; M. 28. H. 6. Ro. a. 321. and praying the Court to assess the same, Lib. Intra. 329. a. it was done accordingly, but this was a special case. Whereas we before showed that an Executor denying his executorship shall if it be found against him, pay the debt of his own goods for his false plea; This thereabout occurreth to be added, viz. that that is only where the immediate executorship of the defendant is denied. For if B. be made Executor by A. and B. dying makes C. his Executor; now if C. be sued for the debt of A. as Executor of B. Executor of A and he denyeth that B. was Executor of A. which by consequence is a denial of his being now Executor of A. yet if this fall out in trial against him, he shall not in his own goods stand liable to this debt; because it is possible that he might not know to whom his Testator was Executor. So if A. See Lib. Intr. 322. made B. C. and D. his executors, and E. is sued as executor of D. the surviving executor of A. if E. deny that D. his Testator survived B. and C. by consequence whereof he denieth the truth, viz. that the executorship of A. is devolved to him, yet shall not this found against him, charge his own goods, for he might be ignorant of this point in fact, viz. whether B. C. or D. lived longest. And here he denied not his own immediate executorship, but a mediate or more remote executorship; and so I think is the Law where C. being sued as executor of B. executor of A. he pleads that A. by a latter Testament made himself executor which is found against him, so as here he falsely pleaded, and pretended himself to be the immediate executor of A. and so denied the mediate executorship, viz. of B. to A. and of him to B. yet Quere of this, for why should not as well his false making himself an executor immediate to the indebted Testator charge his own goods as well as his false denying of that executorship; since both pleas tend to the overthrow of the plaintiffs action, and each equally rested in the defendants knowledge. But this difference is between them apparent, viz. that the denial of executorship, if true, is an utter, and perpetual Bar to the plaintiff, as against him so pleading; but the affirming of an immediate executorship where he was sued as executor mediate, doth not so it true, but directs the plaintiff to a better writ or action, viz. against him as immediate executor to the indebted Testator. Where we have before touched upon the coming of Assets futurely to executors, I think it not amiss to consider a little the form and frame usual in pleas of fully administered which thus run, viz. Quod die impetr. & plene administravit omnia bona & catalla quae fuerunt praed. Lib. Intr. 151. S. temp. mortis suae, & nihil hab. de bonis, etc. quae ●uer. praed. S. temp. mortis, etc. Thus tying his denial upon the things which were the testators at the time of his death. 7. H. 4. 39 Bro. 50. This plea is not good per cur▪ because some may ha●● since accrued. What if then the executor have at the time of this plea pleaded goods with were not the testator● at his death, but since accrued as before is showed, or perhaps a lease for years sold by the testator upon condition to be void, if five hundred pounds not paid at such a day, which happening after the testators death and default made, the term returneth; Or if the executor by a writ of error reverse a judgement given against his testator for two hundred pounds, and so is restored thereunto: May the plaintiff now reply generally that he hath assets which were the testators at the time of his death: How can the Jury so find, when the truth is not so? Surely this case is not common, nor can I show a precedent of a special plea therein. But in reason me thinks it should be specially and not generally pleaded and set forth in the replication. And in case where one sued as executor denieth that he was ever executor or administered as executor, Lib. Intrac. 322. a. b. but a place must be showed. So 21 H 6. 19, 20. Bro. 62. I find sometimes the replication general that he did administer without showing wherein or how, and sometimes special showing what thing was administered and where. Here note, that the executor defendant denying (as he must) two things, viz. 1. That he never was executor; 2. That he never administered as executor▪ the plaintiff in his replication is tied to maintain but the one of them as the truth of the case is; that is, if in truth the defendant were made executor, but never did administer, now it must be replied that he was made executor at such a place, without speaking any thing of his administering. On the other side if he did administer, but were not made executor, then only the administering is to be replied; So done Co. lib. Int. 144. b. but if it shall be found that the defendant had administration to him committed and so administered by virtue thereof, then is the verdict to pass for the defendant, for this is no administering as executor, and upon a general denial thereof this may be given in evidence, as the Lo. Dyar reports to have been resolved. Mich. 13. & 14. Bliz. Dy. 305. But if the plaintiff do in his replication maintain both the points, shall this make his plea double? Me thinks it should, yet I find it so replied, and no exception taken for the doubleness. Lib. in't. 322. b. Tr. 17. H. 8. Rot. 28. A sole woman being executor maketh a deed of gift of the testators goods in trust, Tr. 37. Eliz. but continueth possession of them and marrieth J. S. who also hath possession of the goods, and in an action of debt by a creditor fully administered is pleaded: now upon evidence the verdict shall pass for the plaintiff; for this alienation being fraudulent was void as to all creditors, and so as to the plaintiff the goods continued the testators, and so assets in the defendants hands, as was held in the King's Bench. If fully administered be pleaded where the defendant hath assets for part but not sufficient for all, and so it is found, yet shall not judgement be given for the whole, Yet Finch. 46. E. 3. f. 9, 10 held the contrary, viz. that judgement should be of the whole, but execution only for so much, & a Sci. fac. for the rest when more assets. but for part presently with a further award, that when more shall come to the executor's hand, the plaintiff shall then have further judgement for the rest, so as that false plea doth him no prejudice, but makes him in as good state, the charges of trial excepted, as if he had confessed himself to have part. And I think the plaintiff upon that confession of part may pray the like judgement without maintaining that the defendant hath sufficient for the rest; for if that be not true, why should he be put to the charge of a trial by Jury: yea Sir Edw Cook at the Bar Tr. 36. Eliz. See Co. lib. 8. f. 134. said, that where fully administered is pleaded, the plaintiff is not tied to maintain the contrary, but may presently pray and have judgement to recover it when assets shall futurely come to the defendants hands, which was denied by some; but truly me thinks the law should be as he said as well as in the former case, where for the part which the defendant had not assets to pay, it so was done upon verdict so finding. But there, as I conceive, it was not a present judgement, but an award that he should have judgement futurely; so as after when assets come to the defendants hands, the plaintiff must have a Seire faeias against the defendant, to show cause not why he should not have execution, but why he should not have judgement as I take it, yea where it is found for the defendant, that he hath fully administered, yet was is held by all the Justices, 33 Hen. 6. 23, 24. and by ●riso● 34 Hen. 6. 24. that when assets after come to his hands, the plaintiff shall have a Scire sacias to have satisfaction out of them, but there Markham, Yeluerton, and Forteseu, were of contrary opinion, and so was the whole Court, 4 Hen. 6. foe 4▪ And it stands with great reason, that where upon a verdict fully found against the plaintiff, So 19 H 6. f. 37 〈◊〉 4. f. 24 See judgement so entered. Co. lib. Intr. 151. b. judgement is given quod nihil capiat per breve, there he cannot have any writ to execute the judgement for him, but is put to a new action of debt; yet where it is found that the defendant hath assets for part of the debt, but not sufficient for the whole, there it is very congruous that the plaintiff have presently judgement for part, and after when more cometh, then by Scire facias against the defendant obtain judgement and execution for the rest; ●o 7 E. 4. f. 9 for here both verdict and judgement were for the plaintiff against the defendant, whose plea, that he had no goods, was false, and so found by the jury. And this difference was strongly avowed by Sergeant Hanham, Mich. 33. 34. Eliz. and after approved by Fenner Iust. 36. Eliz. none contradicting it, It is 11 H. 6. 40, 41. yet a book was cited, that the plaintiff recovering so much as was found in the executor's hands should be amersed for the residue, which Popham Chief justice denied to be law. Chap. XVI. Where judgement shall be against the Executors own goods, though no plea of the defendant nor vastation do so occasion, and of the several manners of judgement in several cases. HOw by wasting, called by us commonly, a Devastavit, an executor may draw down the execution upon his own goods, hath formerly been handled and discoursed of, as also what kind of pleas do make the executors own goods liable to the debt, and what not. Now let us see where without misadministring or mis-pleading, yet the nature of the action shall lay the whole debt or thing recovered upon the executors own goods. And this we shall find in some few cases, 1. Where an executor is sued for rend behind after his testators death, upon a lease for years, made to the testator, and by him left to his executor. Here it shall be adjudged and levied upon his own goods, for that so much of the profits as the rent amounted to shall be accounted as his own goods, and not his testators, therefore is he to be sued as well in the debet as the detin●t, where in other cases he is not, but in the detinet only being sued as executor. So if any thing delivered to or detained by his testator come to his hands, and he still detains the same after the demand, and be thereupon sued in an action of detinue, for this is his own act, nor in this case need he to be named as executor, for he shall not answer damages for his testators detaining. So if he assume to pay a debt of his testators having assets, and be sued upon this Assumpt. the which debt is to be recovered in damages, and that upon or out of the executors own goods, yet is this action and the assumption which is the ground thereof founded in the executorship and his having assets, for if either he had not been executor, or if he had not assets at the time of the promise, it had been nudum pactum, 5 Mariae fol. 182. and would not have bound him nor given good cause of suit. Nay to go further, in the case of assumption by the testator, and suit against the executor, thereupon we find the judgement in M. Plowdens' Commentary given against the executor generally, as if he had not been an executor, not fixing it upon the testators goods, Read & Norwoods' case. yet there the very debt itself is included in the damages. Co. l. b. Intr. fo. 1. 2. But contrarily was it after in the seventh year of the late King, viz. judgement given, that as well the damages as the costs should be levied of the testators goods, if so much in value of them were in the defendants hands; and if not, than the costs only of the goods of the executor. And this surely is the righter and more just way, for there is no reason, that upon on a promise, more than upon a bond, the law should cast the whole debt upon the back and state of the executor. But perhaps the two judgements may be reconciled thus, the later was given upon a verdict non assumpsit, being the issue, and there the jury assessed damages in certain, viz. two hundred fifty three pounds with the costs. So as here the judgement was complete and full, viz. to recover the said sum, but in the other case the judgement was had upon a demurrer, so as the damages not being known, it was generally that the plaintiff should recover his damages against the defendant. Sed quia nescitur quae damna, etc. because it appeareth not to the Court what the damages were, therefore a writ was awarded to inquire of damages, upon the return whereof executed, the judgement was fully and completely to be given of a sum in certain, which second judgement it appears not by the book in what manner it was entered, and therefore might perhaps be then agreeable with the other. And that the said first judgement before damages inquired of is not a plenary & full judgement, Tr. 30. Eliz. but an award of judgement hath been divers times resolved, Pase. 33. Eliz. in come. banc. and that therefore any defect and insufficiency in the declaration may be showed time enough after the first, and before the second judgement. Yea if the plaintiff die before the second judgement, though after the first the action falleth to the ground: So if the defendant die, otherwise of death after full judgement. But this notwithstanding, and howsoever it there were done upon the second judgement, me thinks it were righter and fitter that the first judgement should express that the damages should be had and levied out of the testators goods, for whom and in whose right the executor is sued. Another case there is wherein the judgement must be as it seems against the executors own goods, So for rend behind since the testators death. viz. in an action of covenant for a breach of covenant since the testators death; Co. lib. 5. fo. 31. the suit is in the debet as for his own debt. for so was it held both by all the Judges of Common Pleas, except the L. Dyar, M. 14. & 15. Eliz. and by the pregnotaries in the late Queen's time, where the case was of an house upon the lease negligently burned in the executor's time, for which damages only were to be recovered. And sometimes where the executor himself is so to bear the burden, Lib. Intr. 329. a. & b. De terris & catallis, etc. I find the judgement entered that the sum recovered shall be levied of the lands and goods of the executor. Chap. XVII. Of women covert Executors. THere being two kind of persons who have some disability upon them, viz. Femme coverts or married women and infants, touching whom we find in many places question and disceptation in our books: We will consider of them by themselves, or apart from others, yet not joining them together neither, but each by himself separately. First therefore of Femme coverts, touching whom we will consider these three things. First, whether they may make Wills and executors with or without their husband's assent, and how, where, and in what cases. Secondly, whether they may be made executors without their husband's assent, or how their husbands may hinder it. Thirdly, what acts in execution of the executorship they may do without their husbands, or their husbands without them. A woman married, Sect. 1. or femme covert, we know is Sub potestate viri, cui in vita contradicere non potest, as saith the writ given by the Law to the wife for recovery of her land after her husband's death, being aliened by him. Therefore it is that Judges, Sola & secreta examinata. when a woman is to acknowledge a fine of any land, do examine her apart from her husband, to know whether she be willing, or come to do it by the compulsion of her husband: It is therefore hard for her to have freedom of will, and consequently freedom to make a will. Besides, all her moveables or goods personal, Debts except which are not properly good. which she had at the time of her marriage, otherwise than as executrix or administratrix, are by the Law totally devested out of her, and settled in the husband as fully ipso facto upon the very marriage, as any other that were his own before: Of these therefore she can make no disposition, no more than of other her husband's goods. But in case she do by will bequeath them, although the will and gift be void, yet if the husband, 5. Ed. 2. Fitz. devise. 24. as the case was in the time of Edw. the second, do after his wife's death consent to this her will & gift, by delivering of the goods bequeathed after her death, or assenting that the legatee take them by virtue of such will and gift; this amounteth to a new gift by the husband. If a woman have a lease, an estate by extent, a wardship, the next avoidance of a Church, or other chattel real; these are not devested out of her into her husband by marriage, but in case she over-live him, they continue to her as before, no alienation or alteration having been made by the husband, who had power to dispose of them by gift in his life-time, though not by his will; yet such a woman in her husband's life-time could not of or for these things, without her husband's assent, make an executor or will, but she dying before him, they would, by the operation of law, accrue to him. And here then observe a case, though not frequent, yet full of mischief when it happens: Suppose that a woman indebted a thousand pounds, and having leases and movable goods to the value of three thousand or four thousand pounds, marrieth with I. S. and then dyeth before the debt be recovered against her: in this case the husband shall have and go away with all this value of his wife, and is not in law liable to pay one penny of her debts, During her life he is, but not after. because he is neither her executor nor administrator: What the Chancery could do, or rather what the Lord Chancellor or Lord Keeper would do in this case, I will not take upon me to say or determine. Another sort or kind of goods, or rather interests a woman may have, viz. debts or things in action, which as the former are not devested out of her by marriage into her husband, But the husband may receive them, or release them. nor yet can she thereof make an executor without her husband's assent, although they be one degree farther from the husband than the said chatels reals, for that though th● husband do overlive the wife, he shall not be entitled to them as to the former: 12. H. 7. f. 22. But if his wife make him executor, The husband was sued in Spirit. Court. as executor to his wife. as she may, or if after her death he take administration of her goods, then as he is thereby entitled to them, so is he liable also to pay her debts out of the same, when he shall have received them. Lastly, So she is often to former husband, and to father etc. Dato, that a woman covert is executrix to some other person, and in that right hath goods movable; these are not devested out of her, because she hath them not merely to her own use, but as representing the person of another: But whether then may she without her husband's licence or assent in respect of her being an executor, and for continuation of this executorship make executors, and consequently a will or not? Hereabout hath been much diversity of opinion: Some books generally speak that the wife may make an executor, but speak nothing of the husband's assent, 39 H. 6. f. 27. whether necessary or not. Elsewhere we find it mentioned, that if the husband after the wife's death countermand (some books false printed say command) the proving of his wives will, 34. H. 8. S. Bro. Testaments 21. than it loseth all force, or becometh void and of no value: but in this case is no mention in what state this wife stood viz. whether she were executor or not, no nor so much as whether she had any thing in action or chatel real or not, so as nothing in particularity can be grounded upon that case. But there are express opinions that the husband's assent is absolutely necessary even in this case, 18. E. 4. f. 11. Vavasor Inst. so as without it the wives making an executor shall be merely void, and consequently, he to whom she was executor, shall now by her death be dead intestate. And of this opinion was Babington, chief Justice in the beginning of Henry the sixth his time: 4. H. 6. f. 31. Yet contrary hereunto was the opinion of Fineux chief Justice in the time of King Henry the seventh, 12. H. 7. 24. b. viz. that where the wife is an executor she may also make a will and an executor without any consent or assent of her husband. Tit. D●vis. f. 27. And to this opinion doth Master Perkins after consideration of the books on both sides incline. But some will say that since all this in the late Queen's time this hath been contrarily resolved, 〈◊〉 29. Eliz. in 〈…〉. viz. in the case between Andrew Ognell plaintiff, and Vnderhill and Apleby defendants, in the end of which Case, it is in express terms said to have been then resolved that a femme Covert or married woman, Cook lib. 4▪ 51. b. could not make an Executor without the consent of her Husband. To this I answer that this Case is to be construed with relation, Ad materiam subjectam, viz. to the matter, and point in question, and under consideration; which was that state of a woman whereof we have before spoken, viz. one having things in action debts or duties to her belonging, a● therein particular it was arrearages of rent due to the woman before marriage. As for the point of a woman executor to another person, it was never in that Case, under disceptation, no nor once mentioned in the debate or arguments thereupon. Now considering the very form, and phrase of judgements at the common Law, which are thus, viz. Ideo consideratum est per Curiam, etc. not Adjudicatum est, that is, it is considered by the Court, not in express terms, that it is adjudged: This I say well observed (as to me it seems very remarkable) gives us to know that no more is adjudged then is considered of, the judgement being contained, and clasped up in the word Consideratum est. Wherhfore since in Ognells' Case, the point of a woman coverts ability in Case where she is an Executor; To make a will, and Executor hath not been considered of the eyes, tongues, nor thoughts of the Judges, being not once set upon it; It cannot be, that that point is there resolved or adjudged. Besides, even in a few words expressing as to me it seems, the reason of that resolution, it appears not to have been the intent of the Judges, that the same should reach or extend to this Case, of a woman covert executor: for it is added (as the reason of the judgement in my conceiving) that the administration of the wife's goods doth of right belong to the husband, which amounts to this in my understanding, viz. that where the wives making of a will▪ and consequently of an Executor, may be prejudicial to her husband, and prevent him of some benefit or advantage, or tend to his loss, and disadvantage, there it shall not be available or effectual without his assent, and therefore not in the Case of her, who having debts or duties to her due, would by making another to be her Executor exclude or preclude her husband from that benefit, which to him should pertain as administrator of her goods. Now as for the goods debts or credit to her as executor to some other pertaining no benefit could redound to the husband, by having such administration of his wife's goods, for those should go, and be to the next of kin of the wife's Testator taking administration De bonis non administratis of him, if ●hee have no Executor, & therefore her making an Executor as touching these brings no hurt nor prejudice to her husband, and so is out of the reason of Ognells' Case. Since than it is so, and since the Law favoureth wills, and it was by implication part of his will who made her Executor, that she should have power to continue his Executorship by making another to succeed therein after her decease for performance of his will; why should the Law give to the Husband who can receive no prejudice thereby, power to give impediment thereunto; for Frustra est inutilis potentia, even reason itself frames, and awards against him in this Case a Quare impedit, or rather a Non impediet, as to me it seems. Wherefore to conclude, I take it that the opinion of Fineux is good Law in that point of a f●me covert Executor, though not in the other point, where she only hath debts, or things in action to herself due, for therein the said resolution in Ognells' Case, grounded upon good reason, gives me satisfaction to differ from Fineux, who making no difference between the cases held the Husband's assent needles in both. Posito then that the wife of I. S. having debts due to herself, and being also Executrix to I. D. makes without her husband's assent, I. N. her executor, and dyeth, what shall we now say? shall we say, that as touching the goods, and credits, or things in action to her as executrix of I. D. pertaining this will stands good, and I. N. as her Executor may prove it contrary to her husband's will; and that as to the credits to herself in her own right pertaining, the will is void, void, & thereof her husband may take administration? Shall she die both testate, and intestate with a will, and without a will? shall she have both an executor, and administrator? why not? Note. to several purposes aswell as where an executor is made only for one particular thing or one place, the Testator may elsewhere die intestate: and so where the executorship is divided as before is showed, and one to whom part is committed will prove the will, but the other to whom other part of the executorship is committed will not take it upon him, here must needs be a dying for part testate, and for part intestate. As for the second point, viz. wives or women coverts being made executors, and so having the office of executorship put upon them against their husband's will, 13. Ed. 1. Fitz. Exec. 119. there hath also been diversity of opinions. In the time of King Edward 1. Brab. Justice saith she may executor without her husband, and the administration shall be delivered to her only. And I think he meant that this might be without the consent of her husband or whether he would or not, for so is it said in the time of King Henry the seventh to be the Law spiritual, ● Hen. 7. 15. b. and indeed in Courts spiritual no difference is made between women married, and unmarried, for aught I can find: there a wife sueth, and is sued alone without her husband; he intermeddleth not, nor is intermeddled withal touching the things pertaining to his wife. But at the common law it is otherwise, and there as Bryan Chief Justice saith, 2 H. 7. 15. a wife without the assent of her husband cannot be executor, he meaning thereby that the husband may oppose and hinder it: for such an one may be named executor in and by a Will without the knowledge of her husband: let us then see how after the death of the testator, the husband can hinder her proving of the will or intermeddling to administer, since it may be a matter both of much trouble and danger to him, to have the executorship fasten upon his wife, and consequently upon himself. On the other side, it may be a benefit and advantage to the husband, and therefore we will also consider, whether the husband may (though his wife would refuse) assume the executorship and fasten it upon her. The testator therefore being dead, and fame or common bruit carrying it to the Ordinary, that the wife of I. S. is made executrix, if she come not in gratis, or voluntarily to prove the Will; Process or a citation is to be sent out of the Spiritual Court against her, to enforce her coming in to take on her the executorship. She coming may clearly, as well as any other person (especially if her husband concur with her therein) refuse this office, trust and charge, so as if there be no other executor named, the Ordinary must commit the administration: If she should not come and appear, she should be excommunicate as I take it, notwithstanding any allegation or intimation by her husband of his unwillingness to have her take upon her the executorship. But suppose she doth come into Court and offers herself ready to take the executorship upon her, and on the other side her husband expresseth his disassent thereunto, praying that she may not have the execution of the Will to her committed, what will then be done? This I confess pertains to another learning, and not to that of our profession: but forasmuch as I find that in the Courts spiritual a wife stands in the same plight and state as a woman sole, the husband not intermeddled with all in the affairs of the wife; Therefore do I conceive that in that Court, the husband's refusal will not be of force to hinder the committing of the executorship to the wife not refusing, at least if there come not a prohibition to stay the Spiritual Courts such proceeding: but whether a prohibition be in such a case to be granted or not, as I find no resolution in my books, so will I not take upon me to resolve. This stands clear in the rules of the law of England, 33 H. 6. 31. 43. 39 Ed. 3. 1. that the wife is under the husband's power, and cannot contradict him in pleading and doing other acts even touching her own Freehold: 27 H. 8. 24. nay she cannot take lands nor goods by gift or conveyance, without her husband's assent, as the law hath been, and for aught I know is taken. But if once the Will be proved, and the execution thereof committed to the wife, though against her husband's mind and consent, I think it will stand sirme, and the husband and wife being after sued cannot say that she was never executrix, and I doubt whether the wife administering without the husband's privity and assent, although the will be not proved, do not conclude her husband as well as herself, from saying after in any suit against them, that she neither was executor, nor did ever administer as executor. 18 H. 6. 4. The plea is that the femme did or did not administer without speaking of the husband. Yet perhaps this administration by the wife against her husband's mind, will as against him be as a void act, else cannot I see how Brian's opinion before cited, viz. that the wife shall not be an executor, without or against her husband's mind, can be law. On the other side if the husband of a woman, named executor, would have his wife to take upon her the execution of the Will, 33 H. 6. 31. The husband may administer and prove the will for his wife. and to prove the same, but she will not assent thereunto (wishing perhaps that gain and benefit rather to some of her kindred by way of administration then to her own husband by her executorship: as sometimes wives accord not well with their husbands) in this case I think the Court Spiritual will not fasten the executorship upon the wife against her will. But dato, that the husband though the Will be not proved, doth administer as in the wives right, but against her mind and will, shall she be now hereby bound and concluded, so as after she cannot decline or avoid the executorship: and surely I think that during her husband's life, she stands concluded at the common law, for that there she shall not be, nor can be sued alone as executor, and then being sued with him she must join in plea with him, viz. that she neither was executor, nor administered as executor, and then this act of her husbands given in evidence, will as I take it, cause that the verdict be found against her, 1. El. Dy. 166. b. there is cited 3 H. rot. 112. Nota per Bill. not so after her husband's death: then she may refuse, as the Lord Dyar saith, and citeth as resolved. These things I thought good to offer to consideration, and so leave them without resolution. Difference perhaps may be, where a woman so made executor taketh an husband after the testators death, before either proving or refusing to prove the Will, and where she is made executor during the coverture, as there is in case of a descent of her land to the heir of a disseasor; for when there is upon her such a state of election, she marrying before her resolution or determination, doth upon the matter deliver it into the husband's hands: not so where it first findeth and falleth upon her in the state of coverture: if the husband were indebted to the Testator, this making of the wife executor is as I take it, a release in law, as well as if she were the debtor, but if after the testators death she do marry such a debtor, it is a devastation. The third Point. Touching the administration or execution of the Office of executor by a Femme covert and her husband. WE will now come to admit the execution of the will assumed by concurrent consent of husband and wife, and the will proved with both their liking in the wife's name, and examine what acts the wife of herself is able to do, and what her husband without her. It hath been conceived by many of old, and by some of late, that if a Femme covert or married woman executrix release a debt of her testator, or give away the goods which she hath as executor, 7 H. 4. 13. or deliver a legacy bequeathed, it was firm and good, and on the other side, that her husband's gift or release was of no value, See 18 H. 6. 4. In det the plea shall be that she hath fully administered & replic. that she hath assets, never mentioning the husband. for that the administration or execution of the will is committed to the wife only, and some have gone so far as to say that she may sue or be sued without her husband (in the Courts of Common Law, I mean, for in the Spiritual Court it is true the husband is not joined with the wife in suit) but the law is doubtless in all those points contrary, as not only some opinion also was of old, viz. in the time of H. 7. but also hath been in the late Queen's time resolved, for otherwise, if the wife's gift or release should stand good, her act might exceedingly endamage her husband, and make his goods liable to the creditors, the testators state being wasted by the gifts or releases of his wife. Wherefore it was held in the said late case, that unless due payment were made to such women covert executors, their releaseth or acquittances be void, and so also their gifts and grants: yea it was then held that the husband of the wife executrix, 33 H. 6. 31. may give goods or make releaseth of debts at his pleasure. But doubtless by marriage, neither are the goods though personal which the wife hath as executor, devested out of her and settled in her husband as her own goods are; nor if she die, shall they accrue to the husband, if no alteration were of the property, but shall go to her executor or to the next of kin being administrator of her testator if she have no executor, and so was it held in the first year of Queen Mary: Yea though for any other goods which the wife had in her own right before marrying, the husband alone without naming the wife may maintain an action of trespass; yet touching such goods as the wife hath as executor the action must be brought in the names of the husband and wife to the end that the damages thereby recovered may accrue to her as executor in lieu of the goods. M. 31. El. in come. b. If the husband be to avow, it must be in the right of his wife executor or administrator. So also must the replevin for those goods be in both their names. But although the husband be thus named with the wife, Manfilds' case. yet principally is it the suit of the wife, and therefore in such actions or in debt by husband and wife, she being executor, if it come to trial by Jury, the husband being an alien, Doctor Juli● his case. yet shall he not have trial per medietatem linguae or alienigenarum, that is, by half aliens, as in other cases: Cases where an alien is party to a suit is to be had. And whereto a wife made executor, power is given to sell land of the testators; she may sell to her own husband, as was resolved in the time of King Henry the seventh, 10. H. 7. 20. where the Feoffees (it being land settled in use) were committed to the Fleet, for that they would not execute an estate to the husband, according to the wife's state. But of this I much marvel, Bro. Just. Cui in vita 15. She may sell to any other, but not to him. since the Law intends the wife so under the husband's command and subjection, that it holds not her disposition of land to him by will free, nor therefore of force, and how shall this than be conceived to be but a partial sale; yet volenti non sit injuria, and he that will put such power into the hands of a woman under coverture, doth in a manner subject it voluntarily to the husbands will. Fenner Just. in ba. reg. Pas●. 37. Eliz. & 34. E. 3. Bro. Cui in vita. 15. And it hath been held by some, that even an infants or femme coverts conveyance in such case of necessity should stand firm and unavoidable, No prejudice to them that it be good. because of the condition express or implied, that the state should be void, if no such conveyance made. Touching infants, and their making or being made executors. BEing now to consider of disability by age, for want of years in persons making or being made executors: Let us first take view of the several ages of men and women to several purposes material in the law's judgement and respect. And first, touching a woman: 35. H. 6. 41. b. Wangford in Henry the sixth his time shows, and other books approve that she hath six several ages, respected in and by the law. As first the age of seven years, for her father to have aid of his tenants to marry her. Next nine years to deserve dower, that is, that in case she be of that age at the time of her husband's death, she shall be endowed, but not if she be any thing under those years; the Law being Physically informed that a woman at those years may conceive a child, but not under them. But of somewhat different opinion was, as it seems, the Parliament in the late Queen's time, 18. Eliz. cap. 7. when it was made felony to have unlawful carnal knowledge of any woman child under the age of ten years, it being then conceived, as I think, that no such could consent. The age of twelve years is a woman's time for assenting or disassenting to marriage in more tender years had. For so it appears by divers books, although Mr. Littleton have here no distinction between male and female. The age of fourteen years is a woman's time to be in wardship or not, so as if she be any thing above those years, at the time of her ancestors death, she escapeth wardship. The age of sixteen years is her time of coming out of wardship, being once fallen under it, for although had she been full fourteen, she had escaped it; yet not so being at the time of her ancestors death, her wardship lasteth till sixteen years, except the Lord shall sooner marry her. And lastly, the full age of a woman whereby she is enabled firmly and unavoidably to make grants or conveyances is one and twenty years, as well as for the male, before which time, be it that she being sole, make a feoffment or other conveyance, or being married alien her land by Fine, and her husband of fu●l age join with her, yet is it infirm and avoidable. Now of the male, or man, the first age material and setledly resolved on, is twelve years, for at that time each male is at the Leet to swear his fidelity to the King; this women do not, and therefore are they never said to be outlawed, but to be waived, because they have not this admittance into the Law which males have. This hath been, as I think, the ground of that speech, That women are lawless creatures. The second age of males is fourteen years, accounted by the Law, the age of discretion, especially material to two purposes, viz. First, that if one under that age commit an act amounting to felony, yet is he to stand free from the attainder and punishment incident to a felon: Regularly it is thus, but non est regula quin fall it, one of much less years having attained ripeness of discretion and discerning, shall incur the like attainder as one of full age, as was resolved in the time of King Henry the seventh, 3. H. 7. f. 1. 6. touching an infant but of the age of nine years, who having killed another boy of like age with his knife, and then hiding the slain boy, and excusing the blood found upon him, by saying that his nose had bled: It was held by the Judges that he was to be hanged as a felon, his such nonage notwithstanding. The other point, touching which, this age of fourteen years is especially material, is touching an heir of lands held by socage; for in case such heir be under that age, he is to be in ward to the next kin, but if he be of that age, he is not to be in ward at all, for that the law judgeth him to be of discretion at those years, and therefore a Guardian in Socage being in effect but a Bailiff accountable, he hath no need of such an one, other than such as himself shall choose. The third age in and touching males material is fifteen years; for every Lord of a Manor; or one having Freeholders in Socage, or by Knight's Service, when his eldest son cometh to that age, viz. fifteen years, is to have of them aid for the making of him a Knight, towards which every one holding by a whole Knight's Fee is to pay twenty shillings, and so ratably for more, more; and less, less: and each holding twenty pound land in Socage, is to pay the like sum, and so ratably for more or less. The fourth age of males, is the full age of one and twenty years, which maketh him free from wardship, having lands held by Knight-service descended unto him: And also makes him able to alien lands or goods, makes firm his bond, statutes, recognizances, etc. for although at fourteen the law judge him of discretion, yet doth it not hold him fully ripe till one and twenty. The last age of males respected by the law, is seventy years, Oblitum. at which time Sheriffs are to forbear to impanell them in Juries, Another of 60 to exempt from being compelled to serve by the stat. of labourers 23. E. 3. cap. 1. and in case they do not, such old man may have a writ to the Sheriff, grounded upon the statute for that purpose, made in the time of King Edward the first, W. 2. cap. 38. 13 Ed. 1. no. na. br. 165. ● commanding such Sheriff to forbear the impanelling of him; and he may have an action to recover damages upon that statute: This is called by most a writ of Dotage, a word, perhaps, anciently taken in a good and favourable sense, Pro dote etatis, viz. a gift, privilege, or exemption allowed to age in favour thereof, and as a benefit. Having thus by way of ingredient or introduction taken view of these several ages, let us now see wherein and how age is material, touching them who are to make or to be made executors, and what age required thereabout. Master Perkins saith, Devises. f. 97. that one of four years old may make a will, and consequently executors; and his reason is, because the executors being to account before the Ordinary, No good reason, for one may make an ill account; specially having a child's direction for his doings. it cannot be intended but that the goods shall be distributed for the good of his soul: He speaks as if he only made an executor by his will, but did not bequeath any thing, but left all to the executor's conscience and discretion, which is not usual, though fesible, as before I have showed, or said at least. But admit it were so, and no bequest at all contained in the will, yet since at that age an infant hath no discretion to elect a fit person to distribute his goods, money, and other things; no nor to make continuation of an executorship to another, to whom perhaps the infant was executor: I cannot see that his will should be of any force, but if he be of the age of 14. years, being the age of discretion, in the judgement of law, than I should hold him able to make a will, although yet he be an infant till twenty one years, and can make no gift of land nor goods which shall be of force. And Babington chief Justice, 9 H. 6. f. 6. to other purpose makes like distinction between an infant of such tender years, and one come to the years of discretion. So also as before we showed, is it in the Case of felony. And that way also sounds that which Hanck: 2. H. 4. 22. says in Henry the fourth his time, viz. that an infant of 18. years old may be a disseisor; as implying that his years may be so tender, 40 Ed. 3. 44. that as Candish saith of an infant in Edward the third his time, he is not to be intended able to know or discern between good, and evil, me thinks therefore he should be at the least of the age of discretion, viz. 14. years who should be able to make a will, and consequently an Executor. And the custom for an infant of 15. years old to bequeath by will hath as to me it seems, 37. H. 6. 5. affinity with this opinion, though there the Case was of land in a borough devisable by custom: 11. H. 6. f. 40. 6. and that way reflecteth the Case in the time of King Henry the sixth, where it was said that an infant under 15. years of age should not wage his Law, viz. take an oath to acquit himself of a debt or excuse his default in an action real. And further reason of this opinion will arise out of the consideration of an infant made an Executor. Now touching an infant made Executor how young soever he be, the making of him so is not void, but yet the execution of the will which is the performance of the office of Executor shall not be committed to him till he come to the age of 17. years by the Law spiritual, and till then (for that he is not able to do the part of an Executor,) administration is to be committed to some other; yet if it be a woman infant who is so made Executrix, Co. lib. 5. f. 29. P. in Case she be married to a man of 17 years old or more, now is it as if she were of that age, and her husband shall have the Execution of the will, and if administration were before committed during the minority of the woman, M. 41. &. 42. Eliz. it shall now cease, as is said in Prince's Case. Yet I do a little marvel at these opinions, considering that these things are managed in the spiritual court, and by that Law; and it intermedles not with the husband, in the wife's case; now by that Law, and not our common law, comes in this limit of 17. years. And I have seen it otherwise reported in, and touching this last point. Further touching infants Executors, and under that age of 17. years this is to be noted, viz. that such an one is not able as an Executor to assent to a legacy, Co. lib. 5. fo. 29. But payment is to be made to the Exec. & not to the adm. M. 15. & 16. El. in come. ba. rep 67. Co lib. 5. fo. 29. so as it may by virtue thereof settle in the legatee. Also if administration be during such minority committed with special words of restraint or limitation, viz. that it is done to the use or profit of the infant Executor, than no sale of lease or goods or assent to legacy, by such administrator will bind or prejudice the infant Executor; But otherwise perhaps if the administration during the minority be committed generally. Co. lib. 6. fo. 671. And if the Testator himself, making an infant Executor do also appoint another to be his Executor during his nonage, expressing it to be only for the benefit, and behoof of the infant executor, I doubt whether this temporary executor stand any whit restrained from what pertains to the power of an absolute executor, for there may be perhaps difference between him to whom the owner of the goods commits the government of them, though but for a time, and in special manner, and an administrator so specially made by the ordinary, another being presently by the will of the owner or Testator to have the administration, in whom for a time legal defect is found. But now let us pass over this age of 17. and consider of the infant between that time of his being admitted to take upon him the executorship, and his accomplishment of his full age of 21. First, then suppose that he doth release a debt due to his Testator, whether shall this be good to bind him, and to discharge the debtor aswell as if the executor had been of full age, he now having proved the will, and being by the Law spiritual approved an able executor. And this point coming in question in russel's Case, H. 26. Eliz. in the late Queen's time, consideration was had both of divers good reasons for enabling of this release, as that an executor represents the person of his Testator, and in his right, and power, doth these acts, and not in his own, and therefore his infancy which is a state or condition of his own natural person, shall no more disable him then it doth the King, 16. H. 6. ret 45. a Mayor or other head of a Corporation. 21. Ed. 4. 13. 24. Also divers Books were found to run that way as well in the case of an infant as of a Femme Covert. But upon great deliberation in the King's Bench, and upon conference had with the Lord Anderson, Manwood, and other justices, it was resolved, and adjudged that the release of an infant executor without payment of the debt or duty would not bind or bar him, Co. lib. 5. fo. 27. first for that if it should it would be a wasting or devasting of the goods of his Testator, and so would charge his own goods. Secondly, It would be a wrong which an infant could not do by his release. Thirdly, It was no pursuit nor performance of the office or duty of an executor, but the contrary: And upon this judgement a writ of error was brought in the Exchequer Chamber, where it was agreed by all, that the release was not effectual nor binding, so as this point now had the resolution of all the Judges of England. But it was agreed, that if payment or satisfaction had been made, than the infant executor might have made a good acquittance, and discharge, & indeed payment itself if proved, brings discharge enough, except in the case of a single Bill; Note that the principal case adjudged was not of a release of any debt or duty by specialty, but of trespass in conversion of goods found or taken in the Testators life time. But Po●ito, that this infant had assented to a legacy, whether will this bind him or not? for in the said Case of Russell, it is said that all things which an infant doth according to the office, and duty of an Executor, will stand firm; now it is part of his office to pay, and execute Legacies. Yet since this act amounts to a vastation or wasting of the Testators goods aswell as the other, in case there remain not goods sufficient for payment of the debts, and consequently here aswell as in the other case, the infants own goods would become liable to his Testator debts; I doubt, and incline, that it is not nor can stand effectual, for except in the other we admit a want or possibility of want of assets or goods, the release could neither hurt the infant himself, nor do wrong to any other, and that admitted, this case is of like prejudice; yet if this asset should be void so also would be his payment of Legacies, and how then were he an able Executor at the age of 17. yes to sue, and to be sued for debts, and Legacies, and if upon suit it cannot be showed that debts will take up all or disable the payment, then happily he may be forced to pay; Quaere notwithstanding whether these acts though voluntary stand not good upon Bene esse, or conditionally, viz. if there be besides goods sufficient, etc. or that else the nonaged Executor may have an action of account for the money by him paid to the Legatee, and also avoid his assent where that only needful. But doubtless neither the assent of such Executor before his age of 17. nor any payment of a debt to him could be good, although such acts to or by another Executor, before the proving of the will would stand firm, and good: for this infant wants not only proving, but also ability to prove his Testators will, yea the will stands suspended, and the Testator as it were intestate, whilst the administration stands in force, so as during that time nothing can be done by any as executor, and therefore there is great difference between the cases. What if payment of a Legacy be made to an infant, can he make a sufficient acquittance; This I confess is besides the point in hand, yet because it concerns infants, and Executors (though not infant Executors) it is not amiss here to cast some thoughts, and words upon the point, for that it many times perplexeth both Executors, and Legatees. First, therefore in case the Executor be of the years of discretion, viz. 14. I hold it clear that any payment to him made will stand good, for that the Law at that age holds him able to govern, and manage his own Lands held in socage, and consequently to receive the rents thereof, wherefore whether he who makes such payment have any acquittance or not; if he have proof of the payment, he is well enough acquitted from any second payment, and if without payment he get an acquittance, it will not suffice, the infancy of him who makes the acquittance considered. Besides if the acquittance be as most usually they are, Notes of 〈◊〉 called acquittances. but signed only with the name of the maker, and not sealed, it is only an evidence or proof of payment, and no pledable acquittance, because no deed, so as it nothing differs from proof by witnesses, save that it is not mortal as they. But now if the infant be under the years of discretion, what shall we say to a payment to him specially, if he be but three, or four years old or thereabouts: here I think caution is to be used by the executor generally, and the surest way is, if he fear to keep it in any respects, to pay it into the Court, where it is recoverable, viz. where the will was proved; yet the case so may be, as that this payment may not be at all safe for the Executor. As put the case that he entered into bond or statute to pay all Legacies by such a day, to the several Legatees, here I think the payment into the Court spiritual sufficeth not, Quae●●. for that must make the receipt to be, with some charge, which is in some kind an abatement; there I think therefore legally to secure the Executor, the payment must be to or in the presence of the guardian because of nurture, viz. him or her who hath (though not as guardian in respect of lands) the custody or education of the infant: for otherwise to pay it into the hands of such a tender infant separate from any governor, or guardian, were to expose it to loss, both for that he is not able to count the sum, and for that he yet not being come to discerning years were like with Esop's Cock, to part with pearls or coin for plumes and trifles of no value. But in case no bond nor other collateral penalty lie upon the Executor, or in Case the Bond or Statute be only to perform the will generally which nothing altars the course of payment, which by the will the Law lays upon Executors, then is not the Executor put to any such payment, nor need pay without demand, and acquittance, as in case of payment, upon a single Bill, or of a rent seek where no distress can be taken, nor other penalty incurred: yet in that Case if demand be, and acquittance ready to be given, let the Executor take heed, in Case he be bound to performance, that he stand not upon the invalidity of the acquittance in respect of nonage, for as I have said, proof by witnesses may supply a nullity of acquittance, and much more the weakness or imbecility, payment according to the testators appointment being the matter which acquitteth the payer, and this the Executor may have testified under the hands of divers witnesses expressing circumstances, so as all dying may continue safely from second payment as well as an acquittance, the witnesses whereunto are subject to mortality, as well as the other. But herein Courts of equity do often interpose helpfully for them who seek not evasion from payment, but only security in paying. And of infant executors, and by occasion thereof, of infancy in Legatorees, or Legatees, thus much. Of Legacies. ALthough these be not recoverable at and by the Common Law, but most naturally at and by the Law Ecclesiastical, yet by suits in Courts of Equity, as the Chancery and Court of Requests, they are often obtained, and of many things touching them the Common Law taketh notice, and hath manifold occasions so to do: we will therefore consider thereabout these parts or points, some whereof have been in part before touched upon other occasions. Whether any legacy in certain & lying in prender, may be taken, or had, without the executors assent by the legatee, or him to whom it is be queathed? When an executor can, or safely may pay, deliver, or assent to a legacy? Whether one executor alone may do it, and what if the executor be an infant or woman covert? What shall amount to an assent of the executor, and What to a disassent or disablement of assent? How a lease or chattel real may be given to one for a time, with remainder to another, how not. Where an assent to the first or one part of the bequest shall imply or amount to an assent for the residue. Of the manner of assents and therein of assents conditional. What manner of interest he in the remainder of a lease after the death of another hath during the life of that other, and whether he may dispose of it during that time, and how? Whether this remainder can be defeated by any act of the devisee for life, or by the death of him in remainder first? By what acts or accidents a legacy may be forfeited or lost, and therein of revocation, death before, etc. Whether the executor's assent shall have relation to the testators death, and shall make good a grant before made by the legatee. If the executor give it to another, the legetee hath no remedy at the Common Law per Prisot. 37 H. 6. 30. As for the first, we have before showed the assent of the executor to be necessary before any legacy can be had, for that debts are first to be paid, and that the executor is to look to at his peril. But hereto add a little out of M. Swinborne a learned Civilian, who saith, that in case any goods be in the hands or custody of J. S. and the owner doth bequeath them to him, then may he keep or retain them against the will of the executor, so as there be other sufficient goods in the hands of the executor for payment of all debts: but though thus as it seems would it stand in the Ecclesiastical Law, yet for that no property is transferred to the legatee without the executor's assent, therefore doubtless the executor may at the Common law recover the thing withheld, or damages to the value against the legatee detaining it. Another case there is, wherein as the learned Civilian saith, the legatee may take the thing to him bequeathed lying in prender, viz. Horse, other beast or piece of Plate, or other like thing known and in being, and that is where the testator doth expressly so appoint by his will. But herein doubtless the Common law, at and by the which debts are recoverable against executors will oppose the law Spiritual, for else by such appointment the testator might cause that all his goods should be taken by legatees, and that none should remain to pay debts. Yet if there be other goods besides sufficient for payment of debts, than indeed I see not how the executor can hinder such taking without violating his oath taken for performance of the will. If any say that it is also a breach of oath in the other case, I say he observeth not that there that clause in the will being against the law is void, and consequently there is a nullity upon it, and it is as if no such thing were in the will, and so the oath extends not to it. And as a chattel shall not be transferred to a stranger without the executor's assent; so if the devisee be to the executor himself, till he elect to take as legatee, it shall be in him as executor, as appears by the strain and argument of two cases in Ploughed. Comment. and more lately in the King's Bench, the point being divers days argued was at last so resolved by three Judges against one: Wel●den and Elkington. and the reason of Coke at the Bar was very good, Paramour and Yardley. for here the executor sustains two persons, viz. an executor, and legatee, and so all one, Po●tman and Simmes case. as where the bequest is to another, for Quando duo jura concurrunt inuna persona, Trin. 37. Eliz. aequunt est ac si essent in diversis. All but Gawdy so agreed. As for the second point, it may have these two parts: 1. When the executor is able to give such assent to a legacy. And 2. when he may do it with safety. 21 Eliz. D. 367 As for the first, he is able before probat of the will to assent unto the execution of a legacy, as elsewhere is showed, and that although he be not of full age of 21 years; but if he be under 17 years, so as he is not able to take upon him the office of an executor, and therefore administration is during that time to be committed to some other; Co. lib. 3. fo. 29 Here his assent is not of force or effectual, as we find in Prince's case to have been held in the case of Pigot and Gascoine. As for the second part, till all debts be paid, the executor may not safely consent that the legatee enter into the lease or chattel devised, no more than he may pay money bequeathed, if there be not sufficient also to pay all debts. Of these things more is said elsewhere. Yet because the reader or he that desires direction in these points will look for them under this title, I thought not good here to be altogether silent touching them. As for the third point, viz. Whether the assent of one executor where there be many, be sufficient, 6 H. 7. 5. If the bequest be to one of the executors, he may take it without assent of his compan. yet if a det, his compan. may release it. 48 E. 3. 14, 15. I see not how to doubt, since any one executor may give away any goods of the testators, or release any debts due to him, therefore much more assent, which is no more or greater work in effect then an atturnment of one lessee upon a grant of a reversion. And if there want to pay debts, he only who assented shall answer for it of his own goods, and not his companions. So held where but one of the executors during nonage assented, in the case of Rhetoric and Chapel. H. 9 Jacobi. Ror. 895. in ba. reg. C. But if this executor be either under the age of 17 years, or under coverture, viz. a woman married, such is not able to give a good assent to bind the others, no nor themselves, for then thereby the Infant might draw a debt upon himself, and the wife upon her husband, by assenting to or paying of a legacy, there not being sufficient goods to pay all debts. But the husband's assent is sufficient where the wife is executor, for his acts whom she hath chosen to be her head, may prejudice as well her as himself; yea though she were within age, yet he being of full age, his assent will stand good. But if he or another executor in his own right be above 17 years of age and under 21, I doubt whether now his assent will be sufficient, at least except the case be put that there be assets sufficient, which perhaps there may be material, though not in the other. See more hereof after in the title of women covert, and Infants executors. As to the fourth point, first there may be an assent & election employed, as well as express, for if in the devise or bequest the legatee be appointed to do some act as in respect of the legacy, See Co. lib. Intr. 150. the executor being devisee for life said, the other should have it after her death and he entered and took admin. she dying intestate, yet held Assets in him. and the excecutor doth accept the performance thereof, this amounteth to an assent. So if the devise be to an executor for the education of some children which he doth accordingly educate, this makes an election to have the thing by way of legacy, and not as executor, as appears by the case of Paramoor and Yardly, Ploughed. 543. So if an horse be bequeathed, and one offering to buy him of the executor himself, he directeth him to go and buy the horse of the legatee; This M. 19 H. 7. Rot. 318. See lib. Intr. 321. or if the executor himself offer money to the legatee for the horse, One gave the third part of his goods to A with whom the exec. accounted for the amount, and Asued for that sum in det, but no judgement upon demurrer. this implieth an assent that it should be the legatees by the will, and so was it held in the case between Low and Carter, where the devisee of a term did grant it to the executor, and this acceptance of a grant from him was held to imply the executor's assent that it should be his to grant. But I see not well how that should be law, which in the latter part of the Lo. Dyer is found, Tr. 37 Eliz. in ba. reg. viz. where a term was devised to I. S. and he was made executor, and after the death of the testator entered and occupied the lands a whole year without proving the Will, Wherebe quests to exec. himself. that this was an election to have it as devisee and not as executor. For first he had good right to the term as executor before probat, and so might clearly in that right have taken the profits, although it had not been devised or bequeathed to him, and that before any will proved. Secondly, he could not by right have it as legatee without assent of himself or some other as executor. Tr. 37 Eliz. If he by will bequeath it to I. S. this is an election to have it as legatee. Therefore this general accepation can determine no election, as elsewhere is held. As for disassent or disablement to assent. As if the executor do once declare his assent that the legatee shall have his legacy, he may then enter into it or take it notwithstanding the executor's countermand or revocation of his assent after. So on the other side, I think if he do fully and expressly deny that the legacy shall take effect, he cannot after make a good assent thereunto, for that election once made must stand peremptory, be it refusal to assent, or assent. Yet quae. of this, for that the refusal to assent may be checked by sentence or decree, in the Spiritual Court or Court of Equity, and so an assent be enforced. But if the power of assenting be legally lost by the means aforesaid, viz. disabled, I see not how any legal interest can be transferred by that compelled assent, So if the exec. take a new leas his assent after is void. Tr. 37. Eliz. in Carters case. howsoever decreed. And what is said of a legacy bequeathed to another, the same may be understood in case where the bequest is to the executor himself, and he makes his election to have it as legatee, 19 Eliz. D. 359 or as executor. But if where an Horse is bequeathed to A, the executor after the testators death doth ride the horse or use him in the Coach, or in the Plough; I do not take this to be any such disagreement to the execution of the legacy, as that the executor cannot after assent to the legatees having thereof, no more (though it be somewhat more) then where a drinking-cup is bequeathed, and the executor after the testators death doth use it to drink in, nay, if a lease of land be bequeathed to A, and the executor continueth the depasturing of the testators therein, yet is not this any disagreement to the execution of the legacy, but if this lease-land were let out by the testator from year to year, and the executor dischargeth the tenant, and taketh it into his hands at the years end, this I conceive to be a dis-assent to the legacy, and so also perhaps may his taking or distraining for any rent thereupon due after the testators death; yet am I not resolute that the dis-assent is so peremptory and unchangeable, as the assent, remembering the case in King Henry the eight his time, 14. H. 8. 23. where a term being granted by a lessee conditionally, so as the assent of the lessor could be had by such a day, though the lessors assent were at one time denied, yet might it be yielded at another, so as it were at any time before the day: But yet there it was held, that if no time of assent were limited, than one express denial or refusal would be peremptory, so as the refusal were expressed to the party to whom the assent was to be given otherwise, if it were but in speech to or among strangers. This and the former case, Dy. 359. After choice once made, no variation. 19 Eliz. give the best light to this point that I remember. Now for disablement to assent, it was held in the forementioned case of Low and Carter, that where a term is bequeathed to A, and after the testators death the executor takes a new lease of the same land for more years in possession, or to begin presently; now by this was the term left by the testator surrendered and drowned, so as it could not pass to A by the executors assent after. As to the fifth point, viz. in what manner a lease for years or other chattel real may be bequeathed to one for a time, with remainder to another; it hath been heretofore much doubted, when a lease for years was bequeathed to one for life, or for so many years as he should live, whether the limiting of a remainder thereof after his decease were of any validity in law or not: and this doubt had this ground; any state for life in the judgement of law is greater than any term for years, therefore when a termer hath by his will given his term, or his house or land, which he so holdeth for years to one for life, or for so many years as he shall live; this testator and devisor hath not in the judgement of the law any estate remaining in him; and therefore it was thought very hard for him to give or limit a remainder to another: But after many arguings and debatings, it was in the late Queen's time resolved that such a remainder was good, and that if the first devisee died before the term expired, Blow. Com. 520. & 542. that then he to whom the remainder was limited, might enter and enjoy the residue of the term: As for the giving of part of the years to one, and the residue to the other: viz. If the term being twenty years, the Lessee bequeatheth ten thereof to his wife, and the remainder to his daughter. Of this no doubt ever was, but that it was good, for that after the first state limited, there remained a further term, viz. ten years more in the Devisor, whereof he had power to dispose, whereas in the other case, after the term limited to one for life, there remained but a possibility that this life should not take up the whole term. But now put we the case a third way, viz. that the termor deviseth or bequeatheth the thing in lease to one child entail, with remainder to another, and dieth, and the first entereth and dyeth without issue; now whether shall the next in remainder, or the executor of him so dying have the term residue, and this case came in question, and was adjudged about the middle of K. john his reign in the Exchequer, for there Master Hamond holding by lease for years from the Crown, the manner of Acres in Kent devised the same by his will to Alexander Hamond his eldest son and the heirs males of his body, with remainder to Ralph Hamond, another son in like manner, and the like remainder to Thomas Hamond, and made the said Alexander executor, Both Alexander and Ralph were executors; but that makes no difference. who after his father's decease elected to take as legatory, and after Ralph Hamond died leaving issue male, and making his wife executrix; Alexander not having issue male, granted the whole term by deed to B and C. for the behoof of himself and his wife during their lives, and after to the use of his youngest daughter whom Sir Robert Lewkenor married; then Alexander dying without issue male, the wife, and Executrix of Ralph Hammond entered claiming the term, and being kept out sealed a Lease, whereupon an Eject firmae was brought, and a Jury appearing at the Bar in the Exchequer found a special verdict in effect Vt supra. And in argument of this Case, first the main question was whether this case were all one in Law with the former, where a term was devised to one for life, which remainder over so as by the death of Alexander Hammond without issue male, the term should go to the next in remainder as in the other Case, by the death of the devisee for life dying within the term it should do. And on the plaintiffs part it was urged to be all one, so that by virtue of the Bequeasts supra, Alexander had an estate to him, and his Executors only, so long as there should be heir's males of his body, and he dying without such issue, the term remained to the Executors of Ralph, who had the remainder in like manner, and left issue male which still lived, and so that seat of Ralph yet had continuance. For it was admitted by the counsel on that side, that the term could not go to the issue male of Ralph, according to the words, and intent of the will, since it was impossible to make a term to descend without an act of Parliament. This therefore they said the Law should work, which was nearest to the intent, viz. that after Alexander's death it should go first to his Executors, and assignees, so long as issue male of his body doth continue, and for want of such issue, then to Ralph his Executors and assignees, so long as his issue male should last, and therefore in this case the issue male of Alex. failing, the executor of Ralph, whose issue male faileth not, should enjoy the term, and so judgement ought to be given for the plaintiff, being lessee of that Executor: on the other side it was said by the defendants counsel, that this Case differeth much from the other Case, where the term or Land held by Lease, is given but for life to the first with remainder to another; which Case as having been often resolved, was clearly admitted to be good law; for in that case the intent of the Testator might, and did take effect. But in this case if the land should go to the Executors, and assignees of Ralph Hammon, it must go against the intent of the Testator, whose mind, and will was, as it appears by his word, that it should go only to the issue male, of one son after another, and not to any Executors. Now then since this intent was so contrary to the rules of Law that it could not take effect, therefore it must be void, and so all the words of heirs Male standing void, the Will is to be construed as a sole, and absolute gift, and bequeast to the said Alex. & consequently the term must go to his Executors, and assignees. And for this point resemblance was made to a Case resolved in the Kings-Bench, Windsmore & Holford, vel Holbord in. 28 & 29. Elizab. argued; and Tr. 29. Eliz. adjudg●●●. where a Lease was made by indent. to A. Habend. to A. B. and C. for their lives: now because B. and C. could take nothing it was resolved that A. should not have i● for their lives, but for his own only. This Case was said to come very close in reason to the Case in question; for as here the intent of the Lease was that B. and C. should be estated for their lives, and since that could not be, therefore the naming of them should be utterly void, and as if they had not at all been named; and their lives shall not stand as a measure for the estate of A. So in tother Case the intent of the will, being that the Lease or Land leased should go to the heirs Males of the body; first, of Alexander, and after of Raulphe; since this cannot be, therefore the words, and name of heirs males should stand for a mere blank and cipher, and not to measure out any state to the said Alex. and Ra. and their Executors, and assigns. Also it was said on the defendants part that an estate for life in the judgement of Law is of so short, and uncertain continuance, that if A. make a Lease to B. for his life, and after makes a Lease of the same Land to C. for years now, shall not this latter Lease be void absolutely, for any part of the term, but shall stand in expectance of the death of B. and as soon as he dyeth, shall take effect immediately, whereas if the Lease to B. had been for ten years or any like term, than the Lease to C. should have been void for so many years of his term, thus it appears that a State for life is very momentary in the judgement of Law, and not reputed of any certain continuance so much as for a day, but it is otherwise of an estate tail, so as if A. having given Land to B. in tail doth after (without indenture which makes an Estoppell) make a Lease to C. for xxj. years, and then B. dyeth without issue during the term, yet shall not the Lease take effect, because it was utterly void at the first making. For an estate tail being a state of inheritance may in the intendment, and judgement of Law have continuance for ever, as appears both by the Case of adam's and Lambert, where it is held within the Statute of Chaunteries which speaks of gifts to have continuance for ever. Therefore a reversion upon an estate tail is no assets, nor giveth cause of receipt, otherwise in all these Cases it is touching a reversion expectant upon a state for life. Again it was said by the defendants council that an estate may be limited to A. and his heirs during the life of B. with remainder to C. as in Chudlies Case was resolved, but if Land be given to A. and his heirs, so long as B. shall have heirs of his body or heirs males with remainder over to C. this remainder is utterly void. So as there is in the judgement of Law a great difference between the largeness, and continuance of an estate tail, and of an estate for life. And if (which is worth the observing) a fe● simple cannot afford a remainder to be drawn out of it after such a gift to one, and his heirs during the continuance of an estate tail, or of the measure thereof; much less can a term yield such large thongs to be cut out of it, as a remainder after an estate to one so long as he shall have heirs of his body, or heirs Males, which is all one. And in this case the remainder was held void by Baldwin, 28 H. 8. Dy. fo. 7. and Shelley, though Engl field were of contrary opinion, as the Lord Dyer showeth. Further it was said, that if such a conveyance by will should stand good, it would raise a perpetuity not to be cut off, by any recovery. But whereas the case of Hammon hath been related before, (so by way of admittance it was argued as a gift, and bequest to Al. Ham. and the heirs Males of his body with remainder in like manner to Ralph. The truth of the case was, that the words of the will, were only to Alexander, and his heirs Males (not speaking of his body) and so to Ralph, which as was urged by the defendants counsel, made the Case stronger against the plaintiffs: for admit that the former way Alexander should have had but a state determinable upon the continuance of his issue Males, yet here not so. Since the reason why in wiles, such a devise being made, the Law should supply the words (of the body) is only to make an estate tail to the issues Male according to the Testators intent. Now in this case of a term for years so bequeathed no estate tail could possibly be, though these words had been in the will, and therefore the motive to the Law failing, no such supply will be made by the Law, since it would be to no purpose: consequently, here was neither state tail nor issues or heirs Males of the body, on whose continuance this state of Alex. should be determinable. Therefore it was an absolute, and total bequest of the term to Alexander for ever, viz. so long as the Term should continue: for as a bequest to one for ever is as much as a bequest to him, and his heirs; so a bequest to one and his heirs, is as much as if it had been to him for ever. And this Case after six arguments, on each side at the Bar (if I much mistake not) was upon argument by the Barons adjudged for the defendant, by the Lord chief Baron Tanfeild, and Mr. Baron Bromley, Mr. Baron Denham, (who only heard as I take it, one argument on each side, made of purpose in respect of his coming into his place after the former arguments) being of the contrary opinion: and the judgement proceeded upon the point formerly touched, that as this case was the state of Alexander did not end by his death, and remain to the Executors of Ralph. Other points were stirred which will be touched upon other divisions after in this Chapter. It will be observed that I do more fully express reasons, and points enforced on the defendants part, then on the plaintiffs, whereof let these two reasons be accepted. First, That I better could relate that then the other, being the first who argued for the defendant, and hearing little of that which was by others said on either side after, nor hearing the Courts, Nec ad hoc conductus, nec pedibus fortis. Secondly, the labour did lie on the defendants part to prove that this Case differed from the common case of devise to one for life, with remainder to another. We are now come to the sixth point. viz. that where House, or Land held by lease, or the profits thereof, or the lease or term itself which in a Will makes no difference, is bequeathed to A. for life, or for some part of the term with the remainder to B. and the Executor assenteth that A. shall enjoy his bequest, Ploud. 545. 6. whether this shall enure to B. also since without the Executors assent. Co. lib. 10. f. 47 no legacy can take effect. And it hath been resolved that this assent shall be effectual, as well to all the remainders as to the first estate, and so according to former resolutions, it was admitted in Hamon's Case, that Alexander his assent to take as legatee sufficed (if the bequest had been good) for the remainders to Ralph, and others. And the reason of this doubtless is, because here the particular estate, and the remainder are all but one estate in Law; they make but one degree in a Writ of Entre, nor shall have but one year, and a day to enter for mortmain; And an atturnment to the grantee of a rent or reversion for life with remainder over doth enure also to the remainder, which being an assent hath much affinity to that of the Executor, each tending to perfect the grant of another man. Now then whereas it was urged in Hammo●ds Case, that the state limited to Ral●e, should take effect not as a remainder but as a new estate to commence futurely. viz. when Alexander should be dead without issue male: if it should be admitted to be so, then could not the assent of the first state to Alexander have enured to this, since to A. remainder it worketh as being one estate with the first, which reason must fail tother way. This difference between a remainder, and new estate future brings to my mind the case of a rent by way of new Creation granted by C. out of land to A. for life or in tail with remainder to B. in like manner where it hath probably been held, although this limitation to B. cannot be good by way of remainder, because C. had no estate in the rent remaining with him when he made the grant to A. yet should it be good by way of new grant, and creation to commence futurely. But this doubtless cannot so be but with a difference, for if the grant were by indenture between C. on th'one part, and A. only on the other part, now B. being no party to the deed can take nothing by it except by way of remainder; but if he were party to the indenture, or if the grant were by deed poll to which all men are alike parties, than it happily may enure as a future grant to B. This not impertinent. Now as the executors assent to one cannot enure to another though of the same thing, except by way of remainder, so neither can it any way where the things are not the same, except in very special cases; as if a termor bequeath a rent to A, and the land itself to B, the executor's assent that A should have the rent is no assent that B should have the land; Ploughed. Com. 521. In Bret & Rigdens' case. yet I think the assent that B should have the land, doth imply the assent that A should have the rent. So of common or other profit. 1. For that the restraint imposed by the law, against the passing of a chattel by a will without the executor's assent, being out of respect to the payment of the testators debts: now if the land shall pass to B, it is no more available to the testators debts that it pass discharged of the rent then charged. 2. Since the gift and bequest was of the land charged with the rent, therefore if this bequest shall take effect it shall carry the land according to the testators intent, viz. with this charge upon it: for what else doth the executor in this but assent that the will of the testator herein do stand and take effect, and consequently B must take the term according to the will, and not in any different or contrary manner. Next we are to consider of the manner of assents by executors, which hath some affinity with the fourth point. But here we shall consider only of assents conditional, now to this purpose we will cast our eyes upon two sorts of conditions, viz. precedent and subsequent. As for ●he former, an executor may to a legatee absolutely given assent upon a condition precedent, as thus. I am content, that if you can get and bring in to me such a bond wherein the testator stood bound unto I. S. that then you enter upon the term, or take the corn or cattle to you bequeathed. So of other like conditions which may precede the assent, as if you can get the assent of my coexecutor, or if you will pay the arrearages of rent to the lessor behind at the testators death, or if you will pay the wages already due to the servants attending about the cattle or corn to you bequeathed. In this case, if the condition be not performed, there is no assent, and therefore the conditioning in this manner is good. But if it be upon a condition subsequent, as thus I do agree, that you shall have the thing bequeathed to you, provided that you shall pay so much yearly to me, or to such a creditor of the testator, now the legatee entering into or taking the thing bequeathed, shall not lose it again by failing to perform the condition afterwards, for the executor by his assent cannot make that legacy conditional which the testator gave absolutely, no more than he can make that bequest to be absolute which the testator gave conditionally, except by a release made of the condition. As in other things, so in this the executor's assent is like to the atturnment of a lessee, which cannot be upon a condition subsequent, where the grant is absolute or without condition, though yet he may to his atturnment prefix a condition precedent. In the eighth place we are touching the bequest of leases or chattels real, to consider what manner of interest one to whom a remainder of a term after the death of another is limited, hath, and whether he may grant the same or dispose thereof during the life of the first. And as to that it is clear that he hath but a possibility of remainder, for that possibly the whole term may be spent in the life of the first, to whom during his or her life it is bequeathed, now a mere possibility is not grantable. Therefore was it resolved in the late Queen's time, 99 Eliz. Fulses case. where he in remainder granted or sold his state or interest to another during the time of the first, that this grant was utterly void, because a possibility cannot be granted; Lampets' case. Co. l. 10. fo. 48. but whereas some opinion in that case was delivered that this possibility could not be released, no more then granted, it hath since been resolved that he in the remainder by his deed of grant or release to the devisee for life may make his estate, which before was determinable by his death to be now absolute, so as it shall continue to his executors, administrators, and assigns after his death during the whole term. It may be that what was conceived in the said case of Fulsey, negatively of the validity of a release by him in the remainder, might be meant or perhaps expressed of a release to him in the reversion; but surely me thinks though he could not surrender, yet his release or defeasance to him in reversion or remainder having the freehold or inheritance, should dissolve or destroy this term residue after the death of the divisee for life, so as there the freehold should be discharged thereof. But Quae. for I have not known this in question. As for the other point of Fulses case, it was in the said later case of Lampett confirmed and admitted for good law, viz. that this possibility of remainder could not be aliened nor conveyed to a stranger. Now we are come to the ninth point, 9 Point. viz. to examine whether any act of the devisee for life can frustrate or defeat him in the remainder of the term, and whether by the act of God, viz. the death of him in the remainder before the first devisee for life shall defeat it. As to the first, it hath divers times been resolved, Ploughed. 520. Wel●den and Elkington, 10. El. D. 277, 19 Eliz, D. 359. Cont. ● El. D. 253. & 33 H. 8. Bro. chatelx. 23. that no grant made by the first man cut off or defeat the second, though formerly it were held otherwise; but according to the later resolution was it also held or admitted by all in the said case of Hamo●d, where was such a grant. And as this cannot be done by direct grant or alienation, no more can it by an indirect, or employed, as by taking of a new lease, which is a surrender in law of the old lease, no more then by an express surrender. Nor doubtless by outlawry, whereby the term of the first divisee is settled in the Crown. But if we put the case further of waste committed by the tenant for life, or breach of condition by not payment of the rent or otherwise, these for the whole in the later case, and for the part wasted in the former, do so destroy the lease, and put the reversioner in Statu quo prius, as that all remainders must needs fail; so of a feoffement or other like forfeiture by fine. As for the death of him in remainder, it was urged in the case of Hamond, that since it was but a mere possibility, if it could not take effect, and become an estate in the life of him to whom it was limited, it could not settle in his executor; and to that purpose were cited the case of the Rector of Chedington, and more expressly as resolved in the point, the case of Price and Atmore. Weleden & Elk. ubi supra. But there the point was never questioned, though such death was there. But▪ the Court resolved (and found former resolutions in other Courts that way) that the death of him in remainder did not hinder, but that it may settle as well in his executors upon the death of the devisee, as it should have done in himself, if he had overlived the first divisee for life. If the lessor enter and levy a fine, and the divisee for life enters not, nor claims in five years, he in the remainder may enter, as having a right futurely accrued. In the last place we intermeddled only with Leases bequeathed, 10. Point. wherein yet is to be understood, that what thereof is spoken, is to be extended to, and understood of all other chattels real, as wardship of body and lands, estates by extent upon statutes or judgements, terms otherwise than by lease, in fairs, markets, rents, annuities, commons, advowsons, and other profits; yea, one single next avoidance of a Church. Now we come to consider of bequests personal, principally, Of forfeiture, revocation and other loss of legacy. if not only, viz. how such may be forfeited, lost, or revoked. First then, we will consider of the acts of the legatee; secondly, of the acts of God; thirdly of the acts of the testator. The legatee, as from the Civilians I learn, may forfeit his legacy by his miscarriage towards the will: Swinb. de testam. 352, 353. Except as tutor or guardian he accuse it. as if he use means to have it concealed and kept from being known, and consequently proved. So if he accuse it of falsity. So again, if he deface or destroy the will. Also if being by the will appointed to be tutor or educator of a child, he refuseth so to be; so saith Master Swinborne: but Silvester Prierius seems to me opposite in that where he saith, Sum. Silu. 284. Si legatum fuerit aliquid ea conditione ut facias aliquid, tale legatum non est conditionale, sed modale; so as he takes away the force of a condition from words conditional, whereas the other without words conditional raiseth a condition implied. Lastly, if the legatee presume too far upon the strength of of the bequest to him, so as he taketh the thing bequeathed without the consent of the executor; thus also doth he forfeit his legacy, saith Master Swinborne, De testam. 25●. unless the testator did will and appoint he should so do. The falling into enmity with the testator, will be considered of more fitly, as I take it, among the acts of the testator. In the next place let us see what acts of shall God cause a legacy not to take effect, first thus: If the legatee die before the testator, this legacy is lost, and his executor shall not have it: So also saith Master Swinborne, if it be appointed to be paid after the death of the executor, and the legatee dieth before the executor, De testam. 255 Vide Bro. Devise 27. & 45. th●re were divers days of payment, and the devisee died before the last; his executor shall have it. 14. vel 24. H. 8. 36. H. 8. & 3 El. Dy. 59 See this difference. it is lost; and so also if he die before the condition performed, saith he; Let us come now to time of payment, and death before it. If there be a day certain limited for payment, and the legatee die before that day, his executor shall have the legacy; chose, if the payment were limited to be made when the legatee should be married: but if it were only expressed to be towards the marriage of the legatee, and she die before marriage, her executors shall have it, saith Swinborne. Now put the case that a legacy is bequeathed to B to be paid when he shall be five and twenty years old, and B dyeth before that age, it shall now be paid to the executor, and that presently without staying till B should have been of that age, Sum. Silu. 283. saith Prior. Nay, saith Swinborne, if the words of the will be so, According hereto; vide Dy. ubi supra, per majorem opinionem Justiciat. viz. when he shall come to such an age, then if he die before, his executors shall not have it at all, but if the bequest be general; and further it is added in the will that the testator would have that legacy paid the legatee at such an age there though he die before such age, yet his executors shall have the sum bequeathed. The difference may seem very nice, yet happily it wants not some probable colour of reason. Now lastly, let us come to the testators own act, Acts of the testator. who clearly hath power to revoke or countermand any legacy, though he revoke not the rest of the will; and here first of revocation presumed. If there fall out Graves inimicitiae inter legantem & legatarium, Sum. Silic. 285. legatum caducum efficitur, saith the Summist; Sed non propter leves, saith he, & si graves si tamen redeant ad amicitiam, reintegratur legatum, that is, by grievous enmity after arising, and never reconciled between the testator and legatee, the legacy is dissolved, otherwise of a light breach, or falling out, though it continue until the death of the testator. This I conceived to be rather fit for this place, as an act of the testator, then to be reckoned or registered among the acts or forfeitures of the legatee, for that it is not by the Summist made material, or any point of difference, whether the legatee gave just cause of offence, or that the testator unjustly conceived displeasure, and so grew into causeless enmity. Therefore also do I hold it of the nature of a revocation implied or presumed, for that although no revocation be made, yet since the testator hath ceased to bear good will to the legatee, he cannot be intended to will him good, nor consequently to be of the same mind, touching the benefitting of him, as he was when he ●ade his will: yet here again it is worth the con●●deration whether the circumstance following may not make a difference in the case thus; that where the testator▪ dieth shortly after the breach and enmity grown, and before he come to the place where his will is, or at least to opportunity of perusing and reforming the same: There this very alteration of affection should make an alteration in the will, and a revocation of the amicable bequest. But where he living a good space after, and coming to the place where his will was, and specially if he do again peruse it, and yet doth not cross nor expunge that bequest, here it may be presumed that either his enmity ceased, or that so far as to continue this bequest, the charity or other motives inducing him to make it, stood unvanquished and not extinguished by this breach of former amity. For as the continuance of time and opportunity after the making of a verbal or nuncupative will, without reducing it to writing, and causing it to be attested by witnesses, though the testator live divers years after, doth strongly argue his intent not to continue, that what was done in an extremity should stand as his will: so on the contrary, the permitting of a bequest expressed in a written will, to continue without any crossing, blotting, or defacing, may argue against contrary presumption, the testators mind, that it should continue as part of his will. But now let us consider of more express revocation, and to that purpose will I relate a late decree in the Chancery, made by the Lord Keeper, according to the opinion of the Master of the Rolls, three Judges, and two Doctors, Masters of the Court; Between Robert Eyre and William Eyre complainants, and Hester late wife of Christopher Eyre their brother, and now wife of Sir Francis Wortley Defendant; Thus was the case. The said Christopher Eyre, 15. Jacobi, by his last will and testament giveth and bequeatheth to the said Robert Eyre, his brother, an hundred pounds, and to the said William his brother a thousand pounds, and gives to the said Hester his wife all the residue of his estate, and makes and ordains the said Hester his sole and only executrix, saving for the performance of his will ordains Robert Eyre and William Eyre, his said brothers, whom he entreats to join as executors in trust with his wife, for the better performance of this his last will. Afterwards, 5. Jan. 1624. being sick of the sickness whereof he died, he was moved by Master Damport, and Master Stone, to settle his estate; to which motion he yielded, and Master Stone, and Master Damport did demand of the said Christopher, what friend he thought fittest to be his executor, and to whom he would commit the care of discharging his funerals, and performing his will, whether he trusted any person more than his wife, to be his executor? To whom he answered, That his wife was the fittest person for that purpose, and therefore should be his sole Executrix, and then the Testator was moved by M. Stone to give, and bequeath legacies to his father, to his brethren, and to his kindred, whereunto he answered he would give or leave them nothing, and being further put in mind to remember his friends and others, gave and bequeathed to Lionel Atwood his Godchild, 20 or 30s. and being thereupon moved by his wife to give his said Godson more, or a greater legacy, or the like in effect; said, thou knowest not what thou dost, do not wrong thyself, 20s. or 30. Shillings is money in a poor body's purse, or the like in effect, and the rest, he●left them to his wife's discretion or disposition, and the said testator did speak the words v, or the like in effect. Animo testandi & ultiman volu●tat, declarandi, as the witnesses then present did conceive. This will was proved by the oath of the said Hester, and this Codicell being pleaded as a revocation of the said bequests, The said master of the Rolls, Ord. 27. jun. a. 2. Caroli regis. Judges, and Doctors were by the Lord Keeper, and the order of the Court desired to reduce the matter upon the will, and Codicell into a case, & to certify their opinions, whether the said Codicel were a revocation of the legacies given to the plaintiffs or not. And they after counsel heard at several times, viz. both common lawyers, & civillians, & many hours spent in conference together did finally resolve with one unanimous consent, That the legacies to the plaintiffs given were not by the said 〈◊〉 revoked, and so certified under their hands, upon reading whereof 25. Novembr. decree being resolved to be made if cause were not showed to the contrary. 27. Novembr. on which day the defendants counsel before Lord Keeper in the presence of the master of the Rolls, and the said three Judges, and Sir john Heyward, alleging what they could in stay of the said degree, It was by a general concurrence of opinion decreed, that the legacies given to the said plaintiffs, should be to them paid on our Lady even with 20. Nobles in the hundred for the detaynment thereof. This case I thought fit to relate somewhat at large, because it pitcheth upon the point of revocation without plain, full, and express terms. And surely as wills are to be made out of disposing memories, and understandings, so also with deliberate, and advised judgements, and therefore by like reason not to be countermanded or revoked by sick, or slight expressions. And this seems to me very agreeable with the rule, and reason of the common Law. For as reason itself doth dictate that Nihil ta● consentaneum est aequitati naturali, qua● 〈◊〉 quodque dissolvi eodem modo quo conficitur; So hath the common Law of England, in my understanding resolved▪ as for the purpose, if the King present a clerk to a Church, and he is thereupon admitted, and instituted thereunto: Now yet before induction may this be revoked as a will may. Yet if the King shall after, and before induction present another man to this Church without an express repeal or countermand of the former presentation, it shall not hereby be revoked. So if lands were conveyed to certain uses, To help this was the Stat. made 27. Eliz. cap●. with a clause or power of revocation; the sale of the same to another did not revoke the former. But if a state were merely at will, than the conveyance to another by the common Law, amounted to a revocation. Therefore was the Statute made tempore Henrici 8. to redress this, 6. H. 8. cap. 9 viz. that where the King had granted lands, or other things to one during his pleasure, this should not be revoked by a grant to another without recital of the former, and declaration that the King had determined his pleasure. Being now to consider of relation in the Executors assent, it is meet that since these discourses are principally intended, for those who are not grounded Students in, or professors of the Law, that we show what we mean by relation, or what it is in Law. Thus therefore be it conceived; that relation is a kind of fiction in Law, making a thing done at one time to be accepted, and repuld, or to have its operation as if it had been done at another time past. As for the purpose. A doth bargain, and sell freehold lands to B. in August by indenture which is not enrolled until October following, yet this hath such relation to the date of the indenture, that if A. after that, and before the inrolment become bound in a Statute, or granted a rend charge, or made a lease for years, or took a wife, or committed felony, yet shall none of these bee of any force to charge or prejudice the state of B. for that the Law adjudgeth him now owner by relation as from the time of the date: yea if a servant departing in August for some great breach with his Master do kill his master in October, this is in law petty treason, as if he had continued servant when he did the fact, because it relates to the malice conceived when he was his servant. Now then having showed that a term or other chatel real or personal, passeth not nor is transferred in property to the devisee until the assent of the Executor be thereunto had; We now put the case that this assent is not had till a year, or some such good space after the Testators death, and make our question whether this shall have relation to the Testators death, viz. to be in the laws account as if it had then been. Or perhaps to some purposes so to stand, and to others not so. That this is useful, and material to be known be it thus showed. One bequeatheth his term of tithes of an advowson of an House or land by him first leased to an undertenant for rent, and dieth in May, the Executor assenteth to the bequest in October, between which two times tithes be set out, the Church becometh void, rent groweth payable; now if this assent shall relate to the Testators death, the devisee shall have these else not; the like cases may be put of the brood of Cows, Mares, and Ewes, fallen between the death of the Testator, and the assent; so also of Fleeces of Sheep shorn, etc. Now to come to the point, it is reported by the Lord Cook, to have been held in the late Queen's time, Tr. 41. Eliz. that this assent shall as between the Executor, Co. lib. 5. fo. 1●. and the legatee, have relation to the Testators death, B. San dear Case. yet so that if the Executor before his assent to the devisee of a lease committed waste; Vide Blow. come. of an action of tresp. against a stranger for taking before assent. 280. b. now the action of waist shall be brought against the Executor, in the Tenuit for the waist done before, and not against the devisee in the Tenet. But put the case that the legatee before the Executors assent granted the term to I. S. now if to any purpose this assent shall have relation, it shall certainly so be to make good this grant, as making the legatee to be estated, and consequently able to grant before the Executors assent, yet do I not find any opinion or resolution in the Point, but find it debated at the Bar in the late Queen's time between Puckering, P. 25. Eliz. and Egerton, in the case of administration granted to A. after her grant a free term, left by her intestate husband; but I find no resolution therein, nor perhaps wants there material difference betwixt that case, and the other: for there the devisee had at least an inception of title by gift of the owner, wanting only a circumstance of assent to perfect it: but here this woman till administration had not so; unless perhaps the Statute 21. Of Henry the eighth, directing or enjoining ordinaries to grant administration shall amount to a kind of title, ad rem: though not yet in re. But to return to the Point of assets; 48. E. 3. 15. where a reversion is granted by deed or fine, if the lessee a good time after do atturne, this shall have no relation to the time of the grant; So as for waste committed or rend grown due between the grant, and atturnment, the grantee can have no remedy. Therefore it is good for him who buyeth or hath any thing of the gift of a legatee, to have the assent of the Executor, before the sale or gift well testified, or if the assent be not had till after, let him take a new gift, that he may not rest in a doubtful case, for besides the premises that great legist, Sir Edward Cook when he was a practiser to Master Stubbes of Norfolk, for his Sea gave his opinion as I have been confidently informed, that where a lessee, for years, being outlawed did grant his term, and after reversed the outlawry, this did not make good the grant by relation, it not being in the grantor at the time of his grant, and this hath much affinity with the principal point, for there if the relation help not, the grant is not good from the Legatee. Divers cases of bequests considered, and expounded. IF a termor of an House, 14. Eliz. Dy. 307. conte, in a grant. 31. Eliz. bequeath his House to B. without expressing how long he should have it, he shall have the whole term, and number of years, So of land. Also by the name of the House, the Orchards, Gardens, and Backesides do pass: yea if the House with thappurtenances be bequeathed thereby, the lands belonging to the House or used with it do pass, though yet they would not so do, by such words in any lease, Sum. Silu. 286. deed, or grant, yet by some Civilians or Canonists, the Orchard belonging to an House shall not pass by the only gift of the House without some words, showing the intent of the Testator so to be; or except one gate or door lead as well to the Orchard, as to the House, but some other of them hold that it doth pass without any such help of circumstance, so as it be adjoining to the House. If a lessee for years give his term by his will to A. he shall have it without paying any rent, Ibid. ut supr● for the Executors shall pay it for him, a▪ I find in the Summist, but against reason me thinks. If one bequeath his indenture of lease, his whole state in that lease passeth. So if one bequeath his obligation or other specialty, the debt or duty itself shall go to the legatee; and by the canon or civil law the very action itself passeth, Ibid. ut. supra. viz. as I conceive, ability to sue the debtor in his own name; but in our law it is otherwise, the suit must be in the executor's name, for a debt or thing in action cannot be assigned except by or to the King, and only at the common law is the debt recoverable; but the Spiritual Court may force the executor to sue or let his name be used in the suit for and by the legatee. If one bequeath all his moveables, Yet 48. E. 3. 14, 15. It is admit. that such a divisee of all goods after debt paid, shall have a duty resting in account. debts due to him are not bequeathed, nor corn, nor fruit growing on the ground, nor stone, nor timber prepared for building, as the Canonists and Civilians hold. On the other side, if one bequeath the moiety of all his goods, the legatee shall have only the moiety of that which remains after debts paid, Quae. for that only is to be accounted the testators which he hath ultraes alienum. 36 Hen. 8. Dy. 59 By a bequest of all utensils or household-stuff, Dy. ib. supra. plate nor jewels are not given. If one bequeath to his wife all her apparel, Sum. Silu. 286. she shall not have as some Civilians say, her ornaments of gold or silver, by which is meant as I take it, chains, jewels, bracelets, rings, etc. but others are of contrary opinion, except they be such things as are not lawful for her to wear. If a Bed be given by a will, Ibid. Venit ornamentum ejus, saith the Civilian, that is, the furniture thereof passeth, viz. not only the bed, bedsteed, bedcloaths, but also the curtains and valents, as I take it. But I think that by gift of a Coach by will, the Coach-horses pass not, yet perhaps the furniture of the Coach-horses may pass as appertenant to the Coach, for so I think they shall do, rather than by bequest of the Coach horses without the Coach. If one bequeath to A, Ibid. meat, drink, and clothing, or alimenta, he shall have, saith the civil law, also lodging, habitation, and all things necessary for the maintenance of life, viz. as I take it, fire and washing, etc. If one bequeath to his daughter ten pounds a year for her apparreling, Ibid. b. and she demandeth none in four years, now shall she not after that time have the arrearages of this ten pounds by year for the time passed. If a man bequeath one of his horses or cows, Ibid. not naming which, to I. S. he is to choose which he will, so it be not the best of all, saith the civil law, and perhaps the mention of that exception grows out of respect to the hariot, which the Lord should have, or the mortuary which the Parson should have. A man bequeathes thirty pieces of twenty shillings to A, Ibid. twenty to B, and ten to C, to be had in such a Chest or Casket, and it is found after his death, that there be but thirty in all in that casket or box, now each shall be abated ratably, saith my summist, so as A shall have fifteen, B ten, and C five, and this stands with good reason and justice, for so each hath a proportionable part. And it were reasonable, that it were by Parliament established for law, that all both legatees and creditors should be paid in like proportion, where the state will not suffice for full payment of each, rather than that an executor should have power to pay one all, and another nothing, yet if the testator left sufficient to make good all those sixty pieces bequeathed, Quae. if that which is wanting in the casket shall not be supplied and made up, for if the cases following found with the same author be good law, it should seem so to be. If one, Sum. Silu. 286. saith he, bequeath to I. S. that which is another man's, and whereto the testator hath no right, then ought his executor to buy it, and give it to the legatee, or else satisfy him to the full value, and this not only by the civil, but also by the canon law, and in foro conscientiae, saith my author. Again, if A bequeath to B such an horse by name, Ibid. 287. and after sells away that horse, and dyeth, now is his executor bound to answer the value thereof to B; and if the testator after his sale of that horse had bought another, and called him by the same name as the first, now shall this later horse pass to B, saith the book, except it can be proved that the testator sold the former horse of purpose to revoke his will touching that bequest. So again find I, Ibid. 286. that if one having but a moiety or one half of Green close, or of a stack of corn, or other chattel, doth give the whole, so as the words be apparent to reach to more than his moiety, then must the executor buy out the others part for the legatee, or give him the value; but if the words be but general so as they may be reasonably satisfied with the testators part, no supply shall be made. So also if one having goods in pledge bequeath them, it shall be construed to extend no further than his right. A bequest is made of an hundred pounds to be paid at a future time, Ibid. 284. a. viz. divers years after the testators death; a question is made by the Summist, whether the profit of the money in the mean time, shall go to the legatee or the executor, and he resolves with this difference, if the day were given in favour of the legatee being an infant, who could not safely receive it any sooner, than he shall have the profit; but if the respite of payment were in favour of the executor, then shall the legatee have but the bare sum without any addition of mean profits. If one bequeath all his term or goods to his executor for payment of his debts, 15 Eliz. Dy. 331. or debts and legacies, it is a void bequest, because it is no more than the law would say if he had said nothing. Blow. Com. 545. b. So if it be generally to perform his will. Co. lib. 8. 96. a. If one seized in fee simple of land bequeath it to his executor to pay debts, the executor hath no state of freehold; for if he should, than it must be either for life, which might end by his quick death before debts paid, or in fee-simple, which would carry away the land for ever from the heir, where perhaps a few years' profits might suffice to satisfy the debts, yea then by the death of the executor the land should descend to his heir, and not go to his executor, who would be executor of the first testator. If one give or grant all his goods having leases for years as well as moveables, By deed or word in life. the leases shall not pass, 4 E. 6. Bro. Done, etc. 43. as was held in the time of Ed. the 6. And so also was it admitted in Portmans' case, Tr. 37. Eliz. in ba. reg. Portm. ver. Simmes or Willis. divers times argued. for the word bona comprehendeth only moveables by the better opinion there. But the point in that case was pertinent to this place, viz. a bequest in a will of all the testators goods, and whether thereby a lease for years passeth or not, was divers times debated, but not resolved, the Judges differing in opinion in that point, but in another point which made an end of the case, all agreed. Yet the better opinion was as I find in my report, that a lease would pass by such words in a will though not in a deed or grant by word otherwise made, for that legacies are demandable in the Spiritual Court, where bona & catalla are taken for all one. Cap. 28. See also the state of Marlbr giving an action to the successor ad repetenda bona predecess. Yet an eject. custod. hath been maintained thereupon: 4 E. 3. cap. 7. So the stat. 5 R. 2. ca of forf. of goods by those who go beyond the Sea. so also upon the stat. for executors de bonis asportatis in vita testator. hath it been resolved, and where administration is granted, it is only omnium bonorum, without speaking of chattels, yet hath the administrator interest in leases as well as moveables. cap. 16. On the other side the stat. de prerog. reg. mentioning only forfeiture de catallis is clearly extended to moveables, so also in the writ of assize de catallis quae in eo capta fuerint, In all these goods are comprehended and in the writ of execution upon a stat. there is only the word catalla, and not bona, and in the case reported by Kelway temp. Henry the 7th it seems bona & catalla were taken for synonyma or all one. 13 H. 7. Kelw. rep. 35. a. It doth not appear that these stat. and writs were alleged or considered of temp. Ed. 6. but in Portmans' case the most of them were. If one will that his wife or any other shall have or hold or enjoy the moiety of his lease with his executor. This implieth not that the executor have the other moiety as a legacy also, but otherwise as the law casts it upon him, no more than where the moiety of fee-simple land is devised to the younger son, this shall not make the elder son to have the other moiety otherwise then by descent, as between Low and Charter was conceived. But there being a Proviso in the wife's bequest, that if she married from the house, Low and Carters case Tr. 37. Eliz. in ba. reg. than etc. Popham cap. Justice held, that if she married at all, this was a marrying from the house, for she was no longer widow of that house, though she married with one of that kindred, and who had no other house, but would dwell in the bequeathed. CAP. XX. Of the Executor of an Executor. I Should be taxed of omission, if I should not show whether the things fore-spoken of Executors immediate, extend also to the mediate or more remote Executors. See Blow. 184. a Debt against the Executor of an Executor Assuredly, were I not by the books otherwise informed, I should think it somewhat strange, that the mediate Executor in the fourth, fifth or further degree should not by the rules of the common Law, stand in like plight Executor to the first Testator, as the first and immediate Executor, aswellas the heir, and assignee in the third or thirteenth degree is capable of all advantages in like sort as the first and immediate heir, 19 Ed. 1. & 14. Ed. 3. Fitzh. Executor 87. & 103. and assignee. And indeed we find both in the time of Edward the 2. and Edward the 3. Execution sued out upon a judgement, and Statute by an Executor of an Executor, and why he might not aswell maintain an action of debt, etc. I see not. 11. Ed. 3. & 13. Ed. 3. Fitzh. Ex. 78. 92. But I must confess, I find both books to the contrary before any Statute made in the point, 25. Ed. 3 cap. 5. and after an act of parliament to enable them to bring actions, and to make them subject to actions, yet the Statute speaks nothing of conferring upon them the Testators goods. Now if they had title to them before that Statute and without the help of that Statute, it is strange if they should not be suable for debts. But since that Statute, and at this day where by a will a special trust is recommended to an Executor, as to s●ll land, etc. This not performed in his life time, shall not be performable by his Executor, 19 H. 8. 9 10. 4. El. Dy. 210. 32. H. 8. cap. 37. So 32. H. 8. 28. leases. chose of an interest, as to take the profits of lands for certain years towards payment of debts, and legacies: and where the stat. temp. H. 8. gives remedy to Executors for recovery of rents of inheritance behind in the Testators life, And 32. H. 8. cap. 34. Conditions, & 13. El. cap. 5. & 27. I doubt not but executors of executors are within the equity as well as within the Stat. 9 Ed. 3. cap. 3. that the executor who appears at the grand distress shall answer alone. Eliz. cap. 4. Of fraudulent conveyances. Yet the statute Westm. 2. cap. 23. for executors was taken not to extend to executors of executors. 21. H. 8. cap. 15. for falsifying recoveries. 39 H. 6. 45. Quod non est lex. So as now in all cases except of special trust or authority, 7. E. 3. 62. without the office of executorship, The executor of an executor, how far soever in degree remote, stands as to the points both of being, having, and doing in the same state and plight as the first and immediate executor. CAP. XXI. Touching Administrators. OF these also as standing in much affinity with executors, it may be by some expected that I should have treated. But first my excuse is, that these of executors only having grown to so great a bulk above expectation, I was unwilling to enlarge it further. Secondly, that which in the points of having, and doing is before set forth, and showed touching executors, may be applied to, and understood of administrator, sthough not what is spoken of being, and unbeing, or revocation of executorships, and other circumstantial points. Lastly, I may perhaps if these find good acceptance, ad ere long that which appertaineth to Administrators distinguished from Executors, or wherein they stand in different state. CAP. XXII. Considerations in conscience touching payment of Debts, Legacies, and the preferring or respect of persons. TO the advertisement what course executors are to hold in their payments, I thought good to add this in foro conscientiae. That when as it shall stand in the executors will and election to pay whom he will, and as he will in respect of equality in the dignity and degree of the debts, all being for the purpose by specialty, and none of record, and yet he hath not wherewith to pay or satisfy all; Here he may have three ways or courses in his eye. First, where there is equality in the honesty and conscience of the debts; there except in the ability of the paties to bear loss, the disproportion may otherwise occasion, me thinks it should be most honest and just to pay every one proportionably, and to let the loss of every one to be equal: and the justness of this is taught by the law, which gives the audita querela for equal contribution in bearing of loss by them who stand in equal degree: so of legacies. The poverty and inability of some, and the plenty of others, may in foro conscientiae justify the paying more to one and suffering him to lose less (if any thing) than another. For as the widow's mite was a greater gift, so a greater loss than more out of abundance. Where charity finds, or may find place or nearness to place of giving, it may find greater motives of preserving from loss, So of legacies. The nature of the debts, and so sometime of legacies, may be so different, as thence may spring a just motive to disproportion payments, to pay more to one than another, rate for rate, and so to suffer one to lose more than another. One debt may perhaps be use for money, or at least money lent for use, another may be money freely lent. Another debt for land of inheritance bought; another debt for a lease, chattels, or moveables, come to the executor. The first merits the least respect, next the second, than the third, and the last the most. But where without any of these motives there is not equality held in payment, Peccatur (as I think) in conscientiam. But let every one stand or fall by or to his own, or to him who is greater than his conscience. This equality S. Paul in another case recommends to the Corinthians. 2 Cor. 8. v. 14. And Solomon whilst no inequality appeared in the point of right, showed his disposition to have made an equal division of the child between the mothers, who were joint claimers and competitors for it. See more of Conscience, Doct. & Stud. FINIS.